Exhibit 10.45


 


THE ROCKWOOD SPECIALTIES INC.


 


MONEY PURCHASE PENSION PLAN


 


As Amended and Restated Effective as of January 1,
2008


 


(Except as otherwise Provided)


 


1

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  INTRODUCTION

  	
  1

  
	
   

  	
   

  
	
  ARTICLE I DEFINITIONS

  	
  2

  
	
  1.1

  	
  Account

  	
  2

  
	
  1.2

  	
  Account Balance

  	
  2

  
	
  1.3

  	
  Administrative Committee

  	
  2

  
	
  1.4

  	
  Affiliate

  	
  2

  
	
  1.5

  	
  Annuity Contract

  	
  2

  
	
  1.6

  	
  Beneficiary

  	
  2

  
	
  1.7

  	
  Benefit Commencement Date

  	
  2

  
	
  1.8

  	
  Break-in-Service

  	
  2

  
	
  1.9

  	
  Code

  	
  3

  
	
  1.10

  	
  Company

  	
  3

  
	
  1.11

  	
  Compensation

  	
  3

  
	
  1.12

  	
  Defined Benefit Plan

  	
  5

  
	
  1.13

  	
  Defined Contribution Plan

  	
  5

  
	
  1.14

  	
  Disability

  	
  5

  
	
  1.15

  	
  Effective Date

  	
  5

  
	
  1.16

  	
  Eligible Employee

  	
  5

  
	
  1.17

  	
  Employee

  	
  6

  
	
  1.18

  	
  Employer

  	
  6

  
	
  1.19

  	
  Employer Contributions

  	
  6

  
	
  1.20

  	
  Employment

  	
  6

  
	
  1.21

  	
  Employment Commencement Date

  	
  6

  
	
  1.22

  	
  Entry Date

  	
  6

  
	
  1.23

  	
  ERISA

  	
  6

  
	
  1.24

  	
  Highly Compensated Employee

  	
  6

  
	
  1.25

  	
  Hour of Service

  	
  7

  
	
  1.26

  	
  Investment Fund

  	
  8

  
	
  1.27

  	
  Investment Manager

  	
  8

  
	
  1.28

  	
  Leased Employee

  	
  8

  
	
  1.29

  	
  Leave of Absence

  	
  8

  
	
  1.30

  	
  Normal Retirement Age

  	
  8

  
	
  1.31

  	
  Participant

  	
  8

  
	
  1.32

  	
  Participating Affiliate

  	
  8

  
	
  1.33

  	
  Period of Service

  	
  8

  
	
  1.34

  	
  Period of Severance

  	
  8

  
	
  1.35

  	
  Plan

  	
  8

  
	
  1.36

  	
  Plan Year

  	
  8

  
	
  1.37

  	
  Qualified Joint and Survivor Annuity

  	
  9

  
	
  1.38

  	
  Qualified Pre-Retirement Survivor Annuity

  	
  9

  
	
  1.39

  	
  Reduction in Force

  	
  9

  
	
  1.40

  	
  Severance from Service Date

  	
  9

  



 


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  1.41

  	
  Spousal Consent

  	
  9

  
	
  1.42

  	
  Spouse

  	
  9

  
	
  1.43

  	
  Surviving Spouse

  	
  9

  
	
  1.44

  	
  Termination of Employment

  	
  9

  
	
  1.45

  	
  Trust

  	
  10

  
	
  1.46

  	
  Trust Agreement

  	
  10

  
	
  1.47

  	
  Trustee

  	
  10

  
	
  1.48

  	
  Valuation Date

  	
  10

  
	
  1.49

  	
  Vesting Service

  	
  10

  
	
  1.50

  	
  Year of Service

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  11

  
	
  2.1

  	
  Admission as a Participant

  	
  11

  
	
  2.2

  	
  Rehired Employees

  	
  11

  
	
  2.3

  	
  Termination of Participation

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE III CONTRIBUTIONS

  	
  13

  
	
  3.1

  	
  Employer Contributions

  	
  13

  
	
  3.2

  	
  Participant Contributions

  	
  13

  
	
  3.3

  	
  Timing of Contributions

  	
  13

  
	
  3.4

  	
  Forfeitures

  	
  14

  
	
  3.5

  	
  Limitation on Allocations

  	
  14

  
	
  3.6

  	
  [Reserved]

  	
  16

  
	
  3.7

  	
  Return of Employer Contributions Under Special
  Circumstances

  	
  16

  
	
  3.8

  	
  Contributions Conditioned on Deductibility

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV ACCOUNTS, INVESTMENTS AND ALLOCATIONS

  	
  18

  
	
  4.1

  	
  Establishment of Participant Accounts

  	
  18

  
	
  4.2

  	
  Investment of Funds

  	
  18

  
	
  4.3

  	
  Allocation of Earnings to Accounts

  	
  18

  
	
  4.4

  	
  Allocation Report

  	
  18

  
	
  4.5

  	
  Allocation Corrections

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE V VESTING AND TOP-HEAVY PROVISIONS

  	
  19

  
	
  5.1

  	
  Determination of Vesting

  	
  19

  
	
  5.2

  	
  Rules for Crediting Vesting Service

  	
  19

  
	
  5.3

  	
  Rules for Crediting; Service Upon Termination
  of Employment

  	
  20

  
	
  5.4

  	
  Top-Heavy Provisions

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI AMOUNT AND PAYMENT OF BENEFITS TO PARTICIPANTS,

  	
  25

  
	
  6.1

  	
  Termination of Employment

  	
  25

  
	
  6.2

  	
  Age 70-1/2 Distributions

  	
  26

  
	
  6.3

  	
  No In-Service Withdrawals or Loans

  	
  26

  
	
  6.4

  	
  Minimum Required Distributions

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII FORMS OF PAYMENT OF ACCOUNTS

  	
  31

  
	
  7.1

  	
  Methods of Distribution

  	
  31

  



 


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  7.2

  	
  Election of Optional Forms

  	
  31

  
	
  7.3

  	
  Direct Rollovers

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII DEATH BENEFITS

  	
  34

  
	
  8.1

  	
  Payment of Account Balances

  	
  34

  
	
  8.2

  	
  Beneficiary

  	
  34

  
	
  8.3

  	
  Required Commencement

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX FIDUCIARIES

  	
  36

  
	
  9.1

  	
  Named Fiduciaries

  	
  36

  
	
  9.2

  	
  Employment of Advisers

  	
  36

  
	
  9.3

  	
  Multiple Fiduciary Capacities

  	
  36

  
	
  9.4

  	
  Payment of Expenses

  	
  36

  
	
  9.5

  	
  Indemnification

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE X TRUSTEE AND TRUST FUND

  	
  38

  
	
  10.1

  	
  Establishment of Trust

  	
  38

  
	
  10.2

  	
  Powers and Duties of the Trustee

  	
  38

  
	
  10.3

  	
  Exclusive Benefit

  	
  38

  
	
  10.4

  	
  Delegation of Responsibility

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI PLAN ADMINISTRATION

  	
  39

  
	
  11.1

  	
  The Administrative Committee

  	
  39

  
	
  11.2

  	
  Administrative Committee Powers and Duties

  	
  39

  
	
  11.3

  	
  Claims Procedure

  	
  40

  
	
  11.4

  	
  Delegation of Responsibility

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII MANAGEMENT, CONTROL AND INVESTMENT OF PLAN ASSETS

  	
  43

  
	
  12.1

  	
  Investment Funds

  	
  43

  
	
  12.2

  	
  Valuation of Accounts

  	
  43

  
	
  12.3

  	
  Investment in Insurance Contract

  	
  43

  
	
  12.4

  	
  The Investment Manager

  	
  43

  
	
  12.5

  	
  Compensation

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII PLAN AMENDMENT OR TERMINATION

  	
  45

  
	
  13.1

  	
  Plan Amendment

  	
  45

  
	
  13.2

  	
  Limitations of Plan Amendment

  	
  45

  
	
  13.3

  	
  Right of the Company to Terminate Plan

  	
  45

  
	
  13.4

  	
  Effect of Partial or Complete Termination

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV MISCELLANEOUS PROVISIONS

  	
  47

  
	
  14.1

  	
  Plan Not a Contract of Employment

  	
  47

  
	
  14.2

  	
  Source of Benefits

  	
  47

  
	
  14.3

  	
  Benefits Not Assignable

  	
  47

  
	
  14.4

  	
  Domestic Relations Orders

  	
  47

  
	
  14.5

  	
  Benefits Payable to Minors, Incompetents and Others

  	
  47

  
	
  14.6

  	
  Merger or Transfer of Assets

  	
  48

  



 


iii

















 


	
  14.7

  	
  Participation in the Plan by an Affiliate

  	
  48

  
	
  14.8

  	
  Action by the Company or a Participating Affiliate

  	
  48

  
	
  14.9

  	
  Provision of Information

  	
  48

  
	
  14.10

  	
  Notice of Address

  	
  49

  
	
  14.11

  	
  Controlling Law

  	
  49

  
	
  14.12

  	
  Military Service

  	
  49

  
	
  14.13

  	
  Conditional Adoption

  	
  49

  
	
  14.14

  	
  Word Usage and Article and
  Section References

  	
  49

  
	
  14.15

  	
  Effect of Mistake

  	
  49

  



 


iv

















 


INTRODUCTION


 


Effective as of January 1, 1989, Laporte Inc. established The
Laporte Inc. Money Purchase Pension Plan (the “Plan”). The Plan was amended
from time to time for administrative reasons, to reflect changes in the Laporte
Inc. corporate structure, and to comply with changes in relevant law.


 


The Plan was amended and restated effective as of January 1, 1997
(except where otherwise indicated), to comply with the Uruguay Round Agreements
Act (“GATT”), the Uniformed Services Employment and Reemployment Rights Act of
1994 (“USERRA”), the Small Business Job Protection Act of 1996 (“SBJPA”), the
Taxpayer Relief Act of 1997 (“TRA ‘97”), the Internal Revenue Service
Restructuring and Reform Act of 1998 (“RRA ‘98”) and the Community Renewal Tax
Relief Act of 2000 (“CRA”) (collectively known as “GUST”), and other changes in
applicable law. Effective as of March 1, 2001, the Plan name was changed
to The Rockwood Specialties Inc. Money Pension Plan to reflect the acquisition
of Laporte Inc. by Rockwood Specialties Inc. (the “Company”). This Plan, was
amended and restated effective as of January 1, 1997 (except where
otherwise indicated) to reflect certain provisions of the Economic Growth and
Tax Relief Reconciliation Act of 2001 (“EGTRRA”), and is intended as good faith
compliance with the requirements of EGTRRA and is to be construed in accordance
with EGTRRA and any guidance issued thereunder. The Plan is hereby amended and
restated effective as of January 1, 2008 to incorporate all effective
prior amendments since the Plan’s last amendment and restatement, and to
reflect applicable legislative changes, including changes under the Pension
Protection Act of 2006, changes under EGTRRA, and the final regulations under
Code Section 415.


 


The Company intends that this Plan and related Trust qualify under all
applicable provisions of the Internal Revenue Code of 1986, as amended (the “Code”),
and the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
and each of the terms of this Plan and Trust shall be so interpreted.


 


The benefits provided under the Plan to any participant who terminates
Employment, retires or dies while employed by the Company or any Affiliate
thereof shall be determined in accordance with the provisions of the Plan as in
effect on the date of such Termination of Employment, unless such person is
thereafter reemployed and again becomes a Participant in the Plan.


 


1

















 


ARTICLE I


 


DEFINITIONS


 


Each of the following terms shall have the meaning set forth in this Article I
for purposes of this Plan:


 


1.1                                 Account  shall mean the separate account established
and maintained for each Participant pursuant to Section 4.1.


 


1.2                                 Account
Balance  shall mean the value of a
Participant’s Account determined as of the applicable Valuation Date.


 


1.3                                 Administrative
Committee  shall mean the committee
appointed pursuant to, and having the responsibilities specified in, Article XI
of the Plan.


 


1.4                                 Affiliate  shall mean any corporation or unincorporated
trade or business (other than the Company) while it is: (a) a member of a
controlled group of corporations (within the meaning of Code Section 414(b))
of which the Company is a member; (b) a trade or business under “common
control” (within the meaning of Code Section 414(c)) with the Company; (c) a
member of an “affiliated service group” (within the meaning of Code Section 414(m))
which includes the Company; or (d) any other entity required to be
aggregated with the Company under Code Section 414(o).


 


Notwithstanding
the foregoing, for purposes of applying Code Section 414 (b) and (c) to
Code Section 415, the phrase “more than 50 percent” shall be substituted
for the phrase “at least 80 percent” each place it appears in Code Section 1563(a)(1).


 


1.5                                 Annuity
Contract  shall mean an individual or
group annuity contract issued by an insurance company providing periodic
benefits, whether fixed, variable or both, the benefits or value of which a
Participant or Beneficiary cannot transfer, sell, assign, discount, or pledge
as collateral for a loan or as security for the performance of an obligation,
or for any other purpose, to any person other than the issuer thereof. The
terms of any Annuity Contract distributed by the Plan to a Participant or
Beneficiary shall comply with the terms of this Plan.


 


1.6                                 Beneficiary  shall mean the person or persons entitled to
receive any payment of benefits from the Plan upon a Participant’s death, as
determined in accordance with Section 8.2.


 


1.7                                 Benefit
Commencement Date  shall mean the
first day of the first period for which an annuity benefit is payable to the
Participant under the Plan or, if a Participant’s benefit is not payable in the
form of an annuity, the first day on which all events have occurred that
entitle the Participant to receive his or her benefit.


 


1.8                                 Break-in-Service  shall mean a one-year period of severance
determined on the basis of a 12-consecutive-month period beginning on the
severance from service date and ending on the first anniversary of such date,
provided that the Employee during such 12-consecutive-month period does not
perform an hour of service (within the meaning of Section 2530.200b-2(a)(1) of
the U.S. Department of Labor Regulations) for the Employer; provided, however, (a) if
an 


 


2

















 


Employee severs from service as
a result of quit, discharge or retirement and then returns to service within 12
months, the period of severance shall be deemed a period of service, and (b) if
an Employee is absent from service for any reason other than quit, discharge,
retirement or death and during the absence a quit, discharge or retirement
occurs, the period of time between the severance from service date (i.e., the
date of quit, discharge or retirement) and the first anniversary of the date on
which the employee was first absent shall be taken in account, if the employee
returns to service on or before such first anniversary date.


 


Solely for purposes of determining whether a
Break-in-Service has occurred, an Employee who is absent from work for any
period by reason of the (a) pregnancy of the Employee (b) the birth
of a child of the Employee, (c) the placement of a child with the Employee
in connection with the adoption of such child by such Employee, or (d) caring
for such child for a period beginning immediately following such birth or
placement, shall be credited with a sufficient Period of Service to prevent a
Break-in-Service; provided, however, the Employee shall have a Severance from
Service Date which is the second anniversary of the first day of such absence
if the Employee is absent from service beyond the first anniversary of the
first day of such absence. The period between the first and second
anniversaries of the first day of absence from work shall not be deemed a
period of service nor a period of severance.


 


An Employee who is reemployed and is subject
to reemployment under the Uniformed Services Reemployment Rights Act of 1994 (“USERRA”)
shall not be treated as having incurred a Break in Service by reason of the
individual’s period of qualified military service as defined in USERRA.


 


For purposes of this Section 1.8, a “severance from service” shall
occur on the earlier of (a) the date on which an Employee quits, retires,
is discharged or dies, or (ii) the first anniversary of the first date of
a period in which an Employee remains absent from service (with or without pay)
with the Employer for any reason other than quit, retirement, discharge or
death, such as vacation, holiday, sickness, disability, leave of absence or
layoff.


 


1.9                                 Code  shall mean the Internal Revenue Code of 1986,
as now in effect or as amended from time to time. A reference to a specific
provision of the Code shall include such provision, any successor provision,
and any applicable regulations pertaining thereto.


 


1.10                           Company  shall mean Rockwood Specialties Inc. or any
successor legal entity.


 


1.11                           Compensation  shall mean all remuneration for services
rendered paid by the Employer to an Employee, including, without limitation,
bonuses, overtime and commissions, but excluding amounts paid or reimbursed by
the Employer for moving expenses incurred by an Employee to the extent that at
the time of payment it is reasonable to believe such amounts are deductible by
the Employee under Code Section 217, the value of any non-qualified stock
option granted to a Highly Compensated Employee by the Employer, amounts paid
to a Highly Compensated Employee to enable such Employee to pay taxes on
certain items of compensation received from the Employer, and items which be
excluded from the definition of “compensation” within the meaning of Treas.
Reg. Section 1.415-2(d)(3). 
Compensation includes compensation which is not currently includible in
the Participant’s gross income by reason of the application of Code Section 125,
Code Section 402(e)(3) or Code Section 402(h)(1)(B). Effective
as of January 1, 


 


3

















 


2001, Compensation shall also
include amounts includible in the Employee’s gross income by reason of the
application of Code Section 132(f).


 


Notwithstanding the foregoing, the Compensation taken into account for
an Employee for any Plan Year shall not exceed $150,000, as adjusted pursuant
to Code Section 401(a)(17) (the “Code Section 401(a)(17) limitation”).
For the 2001 Plan Year, the Code Section 401(a)(17) limitation is
$170,000. Effective for Plan Years beginning after December 31, 2001,
Compensation taken into account for an Employee for a Plan Year shall not
exceed $200,000, as adjusted for cost-of-living increases in accordance with Section 401(a)(17)(B) of
the Code.


 


Effective
for January 1, 2008, Limitation Compensation shall also include Post-Severance
Compensation.  “Post-Severance
Compensation” means, for Limitation Years that begin on or after January 1,
2008, the following amount(s) that would have been included in the
definition of Limitation Compensation if the amounts were paid prior to the
Employee’s Severance from Service Date from employment with the Employer,
provided such amount(s) are paid to the Employee by the later of 21⁄2 months
after the Employee’s Severance from Service Date from employment with the
Employer or the end of the Limitation Year that includes the Severance from
Service Date from employment with the Employer:


 


(i)            The payment is regular compensation
for services during the Employee’s regular working hours, or compensation for
services outside the Employee’s regular working hours (such as overtime or
shift differential), commissions, bonuses, or other similar payments; and


 


(ii)           The payment would have been paid to
the Employee prior to a Severance from Service Date from employment if the
Employee had continued in employment with the Employer.


 


Post-Severance Compensation shall also include:


 


(i)            Payment for unused accrued bona fide
sick, vacation, or other leave, but only if the Employee would have been able
to use the leave if employment had continued; or


 


(ii)           Received by an Employee pursuant to a
nonqualified unfunded deferred compensation plan, but only if the payment would
have been paid to the Employee at the same time if the Employee had continued
in employment with the Employer and only to that the payment is includible in
the Employee’s gross income.


 


Any
other payment that is not described shall not be considered Post-Severance
Compensation if paid after the Severance from Service Date from employment with
the Employer, even if paid within the time period described above. Accordingly,
Post-Severance Compensation shall not include severance pay, or parachute
payments within the meaning of Code Section 280G(b)(2), if they are paid
after the Severance from Service Date from employment with the Employer, and
shall not include post-severance payments under a non-qualified unfunded
deferred compensation plan unless the payments would have been paid at that
time without regard to the severance from employment.


 


4
















 


1.12         Defined Benefit Plan  shall mean any plan of the type defined in
Code Section 414(j) maintained by the Company or an Affiliate.


 


1.13         Defined Contribution
Plan  shall mean any plan of the type
defined in Code Section 414(i) maintained by the Company or an
Affiliate.


 


1.14         Disability  shall mean a Participant’s total and
permanent inability to meet the requirements of the Participant’s customary
employment in a satisfactory manner by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than
12 months; provided, however, that such disability:


 


(a)           was
not contracted, suffered, or incurred while the Participant was engaged in, or
did not result from his or her having engaged in, a criminal enterprise; or


 


(b)           was
not sustained while the Participant was employed by anyone other than the
Company or an Affiliate. A Participant shall not be considered to have a
Disability unless he or she furnishes proof of the existence of such Disability
to the Administrative Committee in the form and manner, and at such time, as
the Administrative Committee may request.


 


1.15         Effective Date  shall mean January 1, 2008.


 


1.16         Eligible Employee  shall mean all Employees of the Employer
other than: (a) Employees included in a unit of employees covered by a
collective bargaining agreement between the Employer and an employee
representative (not including any organization more than half of whose members
are owners, officers or executives of the Employer) in the negotiation of which
retirement benefits were the subject of good faith bargaining, unless such
bargaining agreement specifically provides for participation in the Plan; (b) Leased
Employees and other individuals providing services to the Employer pursuant to
an agreement between the Employer and a third party, even if they are not “leased
employees” under Code Section 414(n); (c) “seconded employees” who
participate in any non-United States pension plan sponsored by the Company or
any Affiliate; (d) individuals providing services pursuant to contracts
designating them as independent contractors or consultants, or individuals
designated by the Employer as independent contractors or consultants; and (e) any
other individual who is compensated, directly or indirectly, by the Employer
and with respect to whom such compensation is not treated by the Employer at
the time of payment as being subject to statutorily required payroll tax
withholding, such as withholding of federal and/or state income tax and/or
withholding of the Employee’s share of Social Security tax, provided that
statutorily required backup withholding shall not be considered to be payroll
tax withholding. The foregoing exclusions from the definition of “Eligible
Employee” shall apply notwithstanding any contrary determination of employee
status by any court or governmental agency including, but not limited to, the
Internal Revenue Service or the Department of Labor.


 


Effective July 31,
2004, an employee of the Sachtleben Company shall become an Eligible Employee
under the Plan in accordance with this Section 1.16 and shall be eligible
to participate in the Plan in accordance with Section 2.1.


 


5

















 


Effective January 1,
2005, an employee of Oakite Products, Inc. shall become an Eligible
Employee under the Plan in accordance with this Section 1.16 of the Plan
and shall be eligible to participate in the Plan in accordance with Section 2.1.


 


Effective January 1,
2007, an employee of Chemetall Foote Corp. and an employee of CeramTec North
America Innovative Ceramic Engineering Corporation shall become an Eligible
Employee under the Plan in accordance with Section 1.16 of the Plan and
shall be eligible to participate in the Plan in accordance with Section 2.1.


 


1.17         Employee  shall mean any person in an employee-employer
relationship with the Company or an Affiliate and shall include Leased
Employees. Notwithstanding the foregoing, if such Leased Employees do not
constitute more than 20% of the nonhighly compensated work force, within the
meaning of Code Section 414(n)(5)(C)(ii), of the Company and its
Affiliates, the term “Employee” shall not include those Leased Employees
covered by a plan described in Code Section 414(n)(5).


 


1.18         Employer  shall mean the Company and each Participating
Affiliate in the Plan pursuant to Section 14.7.


 


1.19         Employer Contributions  shall mean any contribution to the Plan made
by the Employer and allocated to a Participant’s Account in accordance with Section 3.1.


 


1.20         Employment  shall mean services performed for the Company
or an Affiliate.


 


1.21         Employment
Commencement Date  shall mean the
date on which an Employee first performs an Hour of Service.


 


1.22         Entry Date  shall mean the first day of every calendar
month.


 


1.23         ERISA  shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time. Reference to a specific
provision of ERISA shall include such provision, any successor provision and
any applicable regulation pertaining thereto.


 


1.24         Highly Compensated
Employee  shall mean, with respect to
any Plan Year, an Employee who performs services for the Company or any
Affiliate during the Plan Year, and:


 


(a)           was
a 5% owner (as defined in Code Section 414(q)(2)) during the Plan Year or
the preceding Plan Year; or


 


(b)           had
compensation (as defined in Code Section 415(c)(3)) in excess of $80,000,
as adjusted in accordance with Code Section 415(d), for the preceding Plan
Year and was in the top-paid group of employees for such preceding Plan Year.
The top-paid group of employees is the group consisting of the top 20% of
employees when ranked on the basis of compensation.


 


A former Employee shall be treated as a Highly Compensated Employee if
such Employee was a Highly Compensated Employee when he or she separated from
service or at any time after attaining age 55.


 


6

















 


The determination of who is a Highly Compensated Employee shall be made
in accordance with Code Section 414(q).


 


1.25         Hour of Service  shall mean service credited in accordance
with the elapsed time method under Treas. Reg §1.410(a)-7.  Accordingly, for purposes of the Employee’s
rights with respect to eligibility to participate, vesting and benefit accrual,
the Plan shall credit the period of time which elapses while the Employee is
employed (i.e., while the employment relationship exists) with the Employer,
regardless of the actual number of hours he or she completes during such
period. An Employee’s service shall be taken into account for purposes of
eligibility to participate and vesting as of the date he or she first performs
an hour of service within the meaning of Treas. Reg. §2530.200b-2(a)(1) for
the Employer. Service shall be taken into account for the period of time from
the date the Employee first performs such an hour of service until the date he
or she severs from service with the Employer.


 


The date an Employee severs from service shall be the earlier of the
date the Employee quits, is discharged, retires or dies, or the first
anniversary of the date the employee is absent from service for any other
reason (e.g., disability, vacation, leave of absence, layoff, etc.). If an
Employee is granted a leave of absence (and if no intervening event occurs),
the Severance from Service Date shall occur one year after the date the
Employee was first absent on leave, and this one year of absence shall be taken
into account as service for the Employee. A quit, discharge, retirement or
death within the year after the beginning of an absence for any other reason
shall result in an immediate severance from service.


 


For purposes of eligibility to participate and vesting, an Employee who
has severed from service by reason of a quit, discharge or retirement may be
entitled to have a period of time of 12 months or less taken into account by
the Employer if the Employee returns to service within a certain period of time
and performs an hour of service within the meaning of Treas. Reg. §2530.200b-2(a)(1).
In general, the period of time during which the Employee must return to service
shall begin on the date the Employee severs from service as a result of a quit,
discharge or retirement and ends on the first anniversary of such date.
However, if the Employee is absent for any other reason (e.g., layoff) and then
quits, is discharged or retires, the period of time during which the Employee
may return and receive credit shall begin on the Severance from Service Date
and end one year after the first day of absence (e.g., first day of layoff). A
severance from service (e.g., a quit), or an absence (e.g., layoff) followed by
a severance from service, shall not result in a period of time of more than one
year being required to be taken into account after an Employee severs from
service or is absent from service.


 


For purposes of benefit accrual, an Employee shall be entitled to have
his or her service taken into account from the date he or she begins to
participate in the Plan until the Severance from Service Date. Periods of
severance under any circumstances are not required to be taken into account.


 


Prior to January 1,
2002, an Hour of Service was determined under the general method of crediting
service for an Employee under Treas. Reg. §2530.200b-2 (i.e., actual counting
of hours of service during the applicable 12-consecutive-month computation
period), and/or the equivalencies set forth in Treas. Reg. §2530.200b-3.
Accordingly, an Employee received a year’s credit (in units of years of service
or years of participation) for a computation period during 


 


7

















 


which the Employee was credited
with a specified number of hours of service. An Employee’s rights with respect
to eligibility to participate, vesting and benefit accrual was determined by
totaling the number of years’ credit to which an Employee was entitled.


 


1.26         Investment Fund  shall mean an investment fund, if any, in
which the Trust may be invested pursuant to Section 12.1.


 


1.27         Investment Manager  shall mean any person appointed pursuant to Section 12.4
having the power to direct the investment of assets in accordance with that
Section.


 


1.28         Leased Employee  shall mean, pursuant to Code Section 414(n),
any person who is not a common law employee of the Company or an Affiliate and
who provides services to the Company or an Affiliate if


 


(a)           Such
services are provided pursuant to an agreement between the Company or the
Affiliate and any other person (called a “leasing company”);


 


(b)           Such
person has performed such services for the Company or the Affiliate on a
substantially full-time basis for a period of at least one year; and


 


(c)           Such
services are performed under primary direction or control by the Company or the
Affiliate.


 


1.29         Leave of Absence  shall mean a leave granted by the Employer or
an Affiliate in accordance with its standard personnel policies applied in a
nondiscriminatory manner to all Employees similarly situated. Leave of Absence
shall also include an unpaid leave under the Family and Medical Leave Act of
1993.


 


1.30         Normal Retirement Age  shall mean age 65.


 


1.31         Participant  shall mean an Employee who has commenced, but
not terminated, participation in the Plan as provided in Article II.


 


1.32         Participating
Affiliate  shall mean any Affiliate
which has duly adopted the Plan with the consent of the Company and has not
withdrawn therefrom.


 


1.33         Period of Service  shall mean a period beginning on an Employee’s
Employment Commencement Date and ending on the Employee’s Severance from Service
Date.


 


1.34         Period of Severance  shall mean a period beginning on an Employee’s
Severance from Service Date and ending on the date the Employee earns an Hour
of Service.


 


1.35         Plan  shall mean The Rockwood Specialties Inc.
Money Purchase Pension Plan and any amendments thereto.


 


1.36         Plan Year  shall mean the calendar year.


 


8

















 


1.37         Qualified Joint and
Survivor Annuity  shall mean an
Annuity Contract purchased from an insurance company with a Participant’s
distribution amount which is payable for the life of the Participant with a
survivor annuity continuing after the Participant’s death to the Participant’s
Surviving Spouse for the Surviving Spouse’s life in an amount which is equal to
50% of the amount of the annuity payable to the Participant.


 


1.38         Qualified
Pre-Retirement Survivor Annuity 
shall mean an Annuity Contract purchased from an insurance company with
a Participant’s vested Account Balance providing level monthly benefits for the
lifetime of the Participant’s Surviving Spouse.


 


1.39         Reduction in  Force 
shall mean the reduction of an Employer’s workforce due to a voluntary
or involuntary Termination of Employment where the Participant is  eligible to receive severance pay and/or
severance benefits under an employment termination program or severance plan,
program or arrangement offered by an Employer to at least 5 Participants within
a period not exceeding 6 months.


 


1.40         Severance from Service
Date  shall mean the earlier of (a) the
date the Employee quits, retires, is discharged, or dies, or (b) the first
anniversary of the first date of a period in which an Employee is  absent for any other reason; provided, however, that an Employee shall not
experience a Severance from Service Date while the Employee is on lay-off or
Leave of Absence if the Employee returns to Employment immediately following
the end of the lay-off or Leave of Absence. If the Employee does not return to
Employment immediately following the end of the lay-off or Leave of Absence,
such Employee shall be deemed to have had a Severance from Service Date as of
his first day of absence due to lay-off or Leave of Absence.


 


1.41         Spousal Consent  shall mean the written consent of a
Participant’s Surviving Spouse to an election or designation by the Participant
under the Plan. Such consent shall acknowledge the effect of the Participant’s
election or designation, shall specify the alternate Beneficiary or form of
benefit (if not a  general
consent), as applicable, and shall be witnessed by either a representative of
the Administrative Committee or a notary public Spousal Consent shall not be
necessary if the Participant establishes to the satisfaction of the
Administrative Committee that he or she has no Spouse, his or her Spouse cannot
be located or such other circumstances exist as the Administrative Committee
may, in accordance with applicable regulations, deem appropriate to waive the
requirement of Spousal Consent. Spousal Consent, once given, may be revoked
only with  the consent of the
Participant. Spousal Consent shall be valid and binding only with respect to  the Spouse who gave the consent.


 


1.42         Spouse  shall mean the person legally married to a
Participant.


 


1.43         Surviving Spouse  shall mean the Spouse of a Participant on the
earlier of


 


(a)           the
date of the Participant’s death; or


 


(b)           the
Participant’s Benefit Commencement Date.


 


1.44         Termination of
Employment  shall mean the voluntary
or involuntary severance of Employment.


 


9

















 


1.45         Trust  shall mean the trust established under the
Plan in which Plan assets are held.


 


1.46         Trust Agreement  shall mean the agreement between the Company
and the Trustee with respect to the Trust.


 


1.47         Trustee  shall mean the person appointed as trustee pursuant
to Article X, and any successor trustee.


 


1.48         Valuation Date  shall mean each business day or such other
dates as may be specified by the Administrative Committee.


 


1.49         Vesting Service  shall mean the service credited to a
Participant under Section 5.2 for purposes of determining the Participant’s
vested percentage in his or her Account.


 


1.50         Year of Service  shall mean, in determining service to be
taken into account for purposes of eligibility to participate, vesting and
benefit accrual, each Period of Service unit which is
12-consecutive-months.  For purposes of
eligibility to participate and vesting, the Period of Service shall run from
the Employment Commencement Date (or re-Employment Commencement Date, as
applicable) until the Severance from Service Date. For purposes of benefit
accrual, a Period of Service shall run from the date that a Participant
commences participation under the Plan until his or her Severance from Service
Date. An Employee shall be credited with the period of time which runs during
any absence from service (other than for reason of a quit, retirement,
discharge or death) which is 12 months or less. Prior to January 1, 2002,
an Hour of Service was determined under the general method of crediting service
for an Employee under Treas. Reg. §2530.200b-2 (i.e., actual counting of hours
of service during the applicable 12-consecutive-month computation period),
and/or the equivalencies set forth in Treas. Reg. §2530.200b-3.


 


10

















 


ARTICLE II


 


PARTICIPATION


 


2.1           Admission as a
Participant


 


2.1.1        Each Eligible Employee who
was a Participant in the Plan immediately prior to the Effective Date shall be
a Participant in the Plan as of the Effective Date.


 


2.1.2        (a) each Eligible
Employee not eligible to become a Participant under Section 2.1.1 above,
shall become a Participant in the Plan on the Entry Date coinciding with or
next following such Eligible Employee’s completion of a Period of Service of at
least one month, provided he or she is an Eligible Employee on such date.  This paragraph shall be interpreted in
accordance with the elapsed time method set forth in Treas. Reg. §1.410(a)-7.


 


(b)           Effective
July 31, 2004, an Eligible Employee who is an employee of the Sachtleben
Company shall be credited with his or her prior service with the Sachtleben
Company for eligibility purposes under the Plan.


 


(c)           Effective
January 1, 2005, an Eligible Employee who is an employee of Oakite
Products, Inc. shall be credited with his or her prior service with Oakite
Products, Inc. for eligibility purposes under the Plan.


 


(d)           Effective
January 1, 2007, an Eligible Employee who is an employee of Chemetall
Foote Corp. and CeramTec North America Innovative Ceramic Engineering
Corporation, shall be credited with his or her prior service with said
companies for eligibility purposes under the Plan.


 


2.1.3        Notwithstanding Section 2.1.2
above, the Employer may, in its discretion, provide an earlier Entry Date or
grant past service credit for eligibility purposes to individuals who become
Employees through an acquisition of assets or an entity by the Company or
Affiliate or through a merger or consolidation of an entity with or into the
Company or an Affiliate or any other similar transaction; provided, however, that
any such provision shall be subject to the nondiscrimination requirements of
Code Section 401(a)(4).


 


2.1.4        An Eligible Employee who
has attained his or her Normal Retirement Age and who continues as an Eligible
Employee shall continue to be eligible to actively participate in the Plan
until his or her actual retirement. 
Participation shall terminate as provided in Section 2.3.


 


2.2           Rehired Employees


 


2.2.1        An Employee who has a
Termination of Employment before earning a vested interest in his or her Account
Balance and who again becomes an Employee shall lose credit for his or her
Periods of Service prior to such Termination of Employment if his or her Period
of Severance equals or exceeds the greater of five years or his or her Periods
of Service prior to such Termination of Employment. This paragraph shall be
interpreted in accordance with the elapsed time method set forth in Treas. Reg.
§1.410(a)-7.


 


11

















 


2.2.2        If a Participant who has a
Termination of Employment again becomes an Eligible Employee and his or her
prior Years of Service (or Periods of Service) are not disregarded under Section 2.2.1,
then he or she shall again become a Participant in the Plan as of the first
date on which he or she again becomes an Eligible Employee.


 


2.2.3        A former Employee or
Participant who has a Termination of Employment and whose prior Years of
Service (or Periods of Service) are disregarded under Section 2.2.1 shall
be treated as a new Employee.


 


2.2.4        A former Employee who has
a Termination of Employment and subsequently performs an Hour of Service within
12 months of his or her Severance from Service Date, such Employee’s Period of
Severance shall instead be included as part of his or her Period of Service for
purposes of participation and vesting. This Section 2.2.4 shall be
interpreted in accordance with the service spanning rules of the elapsed
time method, as set forth in Treas. Reg. §4.10(a)-7.


 


2.3           Termination of
Participation


 


An individual shall cease to be a Participant on the earliest of


 


(a)           payment
to him or her or on his or her behalf of all vested benefits due to him or her
under the Plan at a time when he or she is no longer eligible for any future
contributions;


 


(b)           his
or her Termination of Employment when he or she has no vested interest in his
or her Account; or


 


(c)           his
or her death.


 


12

















 


ARTICLE III


 


CONTRIBUTIONS


 


3.1           Employer
Contributions


 


3.1.1        Subject to the limitations
of Sections 3.5 and 3.6, for each Plan Year, an Employer shall make an Employer
Contribution (in an amount determined under Section 3.1.2) on behalf of
each of Participant who was employed by it during the Plan Year and who:


 


(a)           is
employed in “eligible employment” (as defined below) on the last day of the
Plan Year and is credited with a Period of Service of at least 6 months during
such Plan Year;


 


(b)           is
on a Leave of Absence on the last day of the Plan Year, provided the
Participant was employed in “eligible employment” immediately prior to such
Leave of Absence;


 


(c)           died
or became Disabled during the Plan Year at a time when he or she was employed
in “eligible employment;” or


 


(d)           terminated
Employment during the Plan Year on or after attainment of Normal Retirement Age
at a time when he or she was employed in “eligible employment;”


 


(e)           effective
as of January 1, 2007, is employed in “eligible employment” (as defined
below) on the last day of the Plan Year and is credited with a Period of
Service of at least one month during such Plan Year.


 


For purposes of this Section 3.1.1, “eligible employment” shall
mean employment as an Eligible Employee or employment with an Affiliate that is
not an Employer in a position under which the Employee would be an Eligible
Employee if the Affiliate were an Employer.


 


3.1.2        The amount of the Employer
Contribution made on behalf of any Participant who is eligible to receive an
allocation shall be 3% of such Participant’s Compensation received from the
Employer for that portion of the Plan Year during which he or she was a
Participant.


 


3.2           Participant
Contributions


 


No Participant contributions shall be required or permitted under the
Plan.


 


3.3           Timing of
Contributions


 


The Employer shall transfer Employer Contributions to the Trustee no
later than the last day prescribed by law for the filing of the Employer’s
federal income tax return (including extensions thereof) for the taxable year
of the Employer which includes the last day of the Plan Year for which such
contributions were made.


 


13

















 


3.4           Forfeitures


 


Any forfeitures arising under the Plan shall be applied to reduce
Employer Contributions.


 


3.5           Limitation on
Allocations


 


3.5.1        As used in this Section 3.5
and in Section 3.6, each of the following terms shall have the meaning for
that term set forth in this Section 3.5.1:


 


(a)           Annual
Additions means, for each Participant, the sum of the following amounts
credited to the Participant’s Account for the Limitation Year under this Plan
or another Defined Contribution Plan maintained by an Employer:


 


(i)            Employer or Affiliate
contributions;


 


(ii)           Employee contributions;


 


(iii)          forfeitures;


 


(iv)          amounts described in
Code Sections 415(1)(1) and 419A(d)(2); and


 


(v)           allocations under a
simplified employee pension.


 


Amounts attributable to rollover contributions or trust to trust
transfers shall not be Annual Additions.


 


(b)           Defined
Benefit Fraction means, for any Participant, the fraction (determined as of
the last day of the Limitation Year) which shall have a numerator equal to the
Projected Annual Benefit of the Participant under all Defined Benefit Plans and
a denominator equal to the lesser of:


 


(i)            1.25 multiplied by the
dollar limitation in effect under Code Section 415(b)(1)(A) for such
Limitation Year; or


 


(ii)           1.4 multiplied by 100%
of the Participant’s average Limitation Compensation for his or her high three
years.


 


(c)           Defined
Contribution Dollar Limitation means $30,000, as adjusted pursuant to Code Section 415(d).
Effective for Limitation Years beginning after December 31, 2001, Defined
Contribution Dollar Limitation means $40,000, as adjusted for increases in the
cost-of-living under Section 415(d) of the Code.


 


(d)           Defined
Contribution Fraction means, for any Participant, the fraction (determined
as of the last day of the Limitation Year) which shall have a numerator equal
to the sum of the Participant’s Annual Additions and a denominator equal to the
sum of the lesser of the following amounts determined for such Limitation Year
and for each prior Limitation Year for which the Participant was credited with
a Year of Service:


 


14

















 


(i)            1.25 multiplied by the
dollar limitation in effect under Code Section 415(c)(1)(A) for such
Limitation Year.


 


(ii)           35% of the Participant’s
Limitation Compensation for such Limitation Year.


 


(e)           Excess
Amount means the excess of the Participant’s Annual Additions for the
Limitation Year involved over the Maximum Permissible Amount for that
Limitation Year.


 


(f)            Limitation
Compensation means an Employee’s compensation as determined pursuant to
Code Section 415(c)(3). Limitation Compensation shall be subject to the
adjusted dollar limitation under Code Section 401(a)(17). Effective for
Plan Years beginning after December 31, 2001, Limitation Compensation for
a Participant for a Plan Year shall not exceed $200,000, as adjusted.


 


(g)           Limitation
Year means each 12-consecutive month period ending on the same last day as
the Plan Year.


 


(h)           Maximum
Permissible Amount means, for a Limitation Year and with respect to any
Participant, the lesser of (i) the Defined Contribution Dollar Limitation,
or (ii) 25% of the Participant’s Limitation Compensation for the
Limitation Year (or 100% of the Participant’s Limitation Compensation for the Limitation
Year, effective for Limitation Years beginning after December 31, 2001);
provided, however, that the percentage of Limitation Compensation limit shall
not apply to (A) any contribution for medical benefits (within the meaning
of Code Section 419A(d)(2)) after Termination of Employment which is
otherwise treated as an Annual Addition, or (B) an amount otherwise
treated as an Annual Addition under Code Section 415(1)(1).


 


(i)            Projected
Annual Benefit means the Participant’s annual benefit under a Defined
Benefit Plan payable in the form of a straight life annuity computed on the
assumptions that the Participant will remain employed until Normal Retirement
Age (or his or her current age, if later) and that his or her Limitation
Compensation will remain at its current level until that time.


 


3.5.2        The amount of Annual
Additions which may be credited to the Participant’s Accounts for any
Limitation Year shall not exceed the Maximum Permissible Amount. If the
Employer contribution that would otherwise be made or allocated to the
Participant’s Account would cause the Annual Additions on behalf of the
Participant for the Limitation Year to exceed the Maximum Permissible Amount
with respect to that Participant for the Limitation Year, the amount to be
contributed or allocated will be reduced so that the Annual Additions on behalf
of the Participant for the Limitation Year will equal such Maximum Permissible
Amount.


 


(a)           Prior
to determining the Participant’s actual Limitation Compensation for a
Limitation Year, the Administrative Committee may determine the Maximum
Permissible Amount for the Participant for the Limitation Year on the basis of
a reasonable estimation of the Participant’s Limitation Compensation for that
Limitation Year. Such estimated Limitation Compensation shall be uniformly
determined for all Participants similarly situated.


 


15
















 


(b)                                 As
soon as is administratively feasible after the end of a Limitation Year, the
Maximum Permissible Amount for the Limitation Year will be determined on the
basis of the Participant’s actual Limitation Compensation for the Limitation
Year.


 


(c)                                  If
a Participant is credited with an Annual Addition under any other Defined
Contribution Plan maintained by the Company or an Affiliate, before any Annual
Addition is reduced under this Plan, Annual Additions to such other Defined
Contribution Plan shall be reduced to bring all such Plans into conformity with
Code Section 415(c).


 


(d)                                 If,
as a result of the allocation of forfeitures, a reasonable error in estimating
a Participant’s annual Limitation Compensation, a reasonable error in
determining the amount of elective deferrals that may be made with respect to
any Participant under the limits of Code Section 415, or under other
limited facts and circumstances that the Commissioner of Internal Revenue finds
justify the availability of the rules set forth in this Section 3.5.2(d),
the Annual Additions under the Plan for a particular Participant would cause
the limitations of Code Section 415 to be exceeded, then -


 


(i)            The Excess Amount in
the Participant’s Account will be used to reduce Employer Contributions for such
Participant in the next Limitation Year, and each succeeding Limitation Year if
necessary.


 


(ii)           If, after the
application of subparagraph (i), an Excess Amount still exists and the
Participant is not covered by the Plan at the end of a Limitation Year, the
Excess Amount will be held unallocated in a suspense account and applied to
reduce Employer Contributions for all remaining Participants in the next
Limitation Year, and each succeeding Limitation Year if necessary.


 


If a suspense account is in existence at any time during a particular
Limitation Year, all amounts in the suspense account must be allocated and
reallocated to Participants’ Accounts before any Employer contributions may be
made to the Plan for that Limitation Year.


 


3.6                                 [Reserved]


 


3.7                                 Return
of Employer Contributions Under Special Circumstances


 


Notwithstanding any provision of this Plan to the contrary, upon timely
written demand by an Employer to the Trustee:


 


(a)           Any
contribution made by the Employer under a mistake of fact shall be returned to
the Employer by the Trustee within one year after the payment of the
contribution.


 


(b)           Any
contribution made by the Employer shall be returned to the Employer within one
year after a current deduction for the contribution under Code Section 404
is disallowed by the Internal Revenue Service, but only to the extent
disallowed.


 


(c)           Any
contribution made by the Employer shall be returned to the Employer by the
Trustee within one year after notification from the Internal Revenue Service
following a timely application for determination as to initial qualification
that the Plan is not a qualified plan.


 


16

















 


Contributions returned to the Employer under (a) or (b) above
shall be net of any investment losses but shall not include any earnings
thereon.


 


3.8                                 Contributions
Conditioned on Deductibility


 


All contributions made under the Plan are made on the condition that
they are currently deductible under Code Section 404; provided, however,
that no contributions shall be returned to the Employer except as provided in Section 3.7.


 


17

















 


ARTICLE IV


 


ACCOUNTS, INVESTMENTS AND ALLOCATIONS


 


4.1                                 Establishment
of Participant Accounts


 


The Administrative Committee shall establish and maintain an Account in
the name of each Participant. The Administrative Committee shall credit or
cause to be credited all Employer Contributions allocable to the Participant,
and any earnings, losses and expenses attributable thereto, to the Participant’s
Account.


 


The maintenance of separate Accounts under this Section 4.1 is for
accounting purposes only, and a physical segregation of assets of the Trust to
each separate Account shall not be required. Any distribution to a Participant
or Beneficiary shall be charged to the Participant’s Account in accordance with
procedures established by the Administrative Committee.


 


4.2                                 Investment
of Funds


 


If Investment Funds are established pursuant to Section 12.1, then
the contributions and Account Balance of a Participant or the Account Balance
of a Beneficiary of a deceased Participant shall be invested among the
Investment Funds as directed by the Participant or Beneficiary in accordance
with and subject to Section 12.1.2. Investment directions by a Participant
or Beneficiary may be made or changed on each business day once a calendar
month, subject to such procedures as may be established by the Administrative
Committee (including, but not limited to, requirements for prior notice and
investments in minimum increments). In the event that a Participant for any
reason fails to provide proper initial investment directions, contributions
allocated to such Participant shall be entirely invested in an Investment Fund
or Funds specified by the Administrative Committee.


 


4.3                                 Allocation
of Earnings to Accounts


 


All earnings or income received on any investment credited to a
Participant’s or Beneficiary’s Account under the Plan shall be reinvested in
such investment.


 


4.4                                 Allocation
Report


 


The Administrative Committee shall deliver to each Participant and
Beneficiary of a deceased Participant, at least annually, a statement for the
Account of such Participant or Beneficiary which shows the activity since the
prior statement date and the market value of the Account as of the current
statement date and any other information deemed appropriate by the
Administrative Committee.


 


4.5                                 Allocation
Corrections


 


Any error or omission in the statement provided pursuant to Section 4.4
shall be corrected as necessary to remedy such error or omission.


 


18

















 


ARTICLE V


 


VESTING AND TOP-HEAVY PROVISIONS


 


5.1                                 Determination
of Vesting


 


5.1.1                        A
Participant who has a Termination of Employment either because of his or her
death or Disability or who has a Termination of Employment on or after
attainment of Normal Retirement Age shall have a vested percentage of 100% in
his or her Account.


 


5.1.2                        Effective
January 1, 2007, a Participant shall be fully vested at all times in his
or her Account; provided, however, the vested percentage of a Participant in
his or her Account prior to July 31, 2004 shall be determined in
accordance with the following schedule:


 


	
  Completed Years of

  Vesting Service

  	
   

  	
  Vested

  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2 years

  	
   

  	
  25

  	
  %

  
	
  3 years

  	
   

  	
  50

  	
  %

  
	
  4 years

  	
   

  	
  75

  	
  %

  
	
  5 years

  	
   

  	
  100

  	
  %

  



 


Effective July 31, 2004, an employee of the Sachtleben Company who
is a Participant under the Plan shall be credited with his or her prior service
with the Sachtleben Company for purposes of this Section 5.1.2 and Article V.  Notwithstanding the Vesting Schedule listed
above, effective July 31, 2004, a Participant shall be fully vested at all
times in his or her Account. Effective January 1, 2005, an employee of
Oakite Products, Inc. who is a Participant under the Plan shall be
credited with his or her prior service with Oakite Products, Inc. for
purposes of this Section 5.1.2 and Article V. Notwithstanding the
Vesting Schedule listed above, effective January 1, 2005, a Participant
shall be fully vested at all times in his or her Account.  Effective January 1, 2007, an employee
of Chemetall Foote Corp. and CeramTec North America Innovative Ceramic
Engineering Corporation who is a Participant under the Plan shall be credited
with his or her prior service with said companies for purposes of this Section 5.1.2
and Article V notwithstanding.


 


5.1.3                        Notwithstanding
the foregoing, any Participant who, prior to attaining Normal Retirement Age,
has an involuntary or voluntary Termination of Employment as a result of a
Reduction in Force shall be 100% vested in his or her Account; provided,
however, that such provision shall be implemented in a uniform and
nondiscriminatory manner. Effective as of March 1, 2002, this Section 5.1.3
shall apply only to Participants with 3 or more years of Vesting Service on March 1,
2002.


 


5.2                                 Rules for
Crediting Vesting Service


 


5.2.1                        A
Participant’s Vesting Service shall equal the sum of paragraphs (a) and (b) below:


 


(a)           Subject
to the limitations set forth in Sections 5.2.2 and 5.2.3, a Participant shall
earn a year of Vesting Service for each one year Period of Service he or she
completes. For 


 


19

















 


purposes of
determining a one year Period of Service for vesting, non-successive Periods of
Service shall be aggregated on the basis that Periods of Service totaling 12
months (with 30 days deemed to be a month in the case of the aggregation of
fractional months) or 365 days shall equal a whole year Period of Service. This
paragraph shall be interpreted in accordance with the elapsed time method set
forth in Treas. Reg. §1.410(a)-7.


 


(b)           In
addition, the Company may, in its discretion, grant past service credit for
Vesting Service to individuals who become Employees through an acquisition of
assets or an entity by the Company or an Affiliate or through a merger or
consolidation of an entity with or into the Company or an Affiliate or any
other similar transaction; provided, however, that any such provision shall be
subject to the nondiscrimination requirements of Code Section 401 (a)(4).


 


5.2.2                        A
Participant who has no vested percentage in his or her Account Balance and who
has a Termination of Employment shall, if he or she again becomes an Employee,
receive no credit for his or her Vesting Service prior to such Termination of
Employment if his or her Period of Severance equals or exceeds the greater of
five years or his or her Period of Service prior to such Termination of
Employment. This paragraph shall be interpreted in accordance with the elapsed
time method set forth in Treas. Reg. §1.410(a)-7.


 


5.2.3                        If
a Participant who is less than 100% vested in his or her Account Balance has a
Termination of Employment and incurs a Period of Severance of at least five
consecutive years, then his or her Period of Service after such Period of
Severance shall be disregarded for purposes of vesting in his or her Account
Balance which accrued before such Period of Severance This paragraph shall be
interpreted in accordance with the elapsed time method set forth in Treas. Reg.
§1.410(a)-7.


 


5.3                                 Rules for
Crediting; Service Upon Termination of Employment


 


5.3,1 If a Participant who is less than 100% vested in his or her
Account Balance terminates Employment and receives a complete distribution of
his or her vested Account Balance (or, under Section 6.1.2, is deemed to
have received a complete distribution), then the nonvested portion of his or
her Account Balance shall be treated as a forfeiture.


 


5.3.1                        In
the event a Participant forfeited any portion of his or her Account in accordance
with Section 5.3.1 and again becomes an Eligible Employee prior to
incurring a Period of Severance equaling at least five consecutive years, the
nonvested portion of his or her Account shall be restored to its value as of
the date of distribution (or deemed distribution). If the Participant received
a distribution, his or her vested portion shall not be less than an amount (“X”)
determined by the formula: X = P(AB + D) - D. For purposes of applying the
formula: P is the vested percentage at the relevant time; AB is the Account
Balance at the relevant time; D is the amount of the distribution; and the “relevant
time” is any time prior to the time at which, under the Plan the vested
percentage in the account cannot increase. The restored amount shall be derived
from amounts forfeited during the Plan Year through such Valuation Date and, if
such forfeitures are not sufficient, from a contribution by the Employer.


 


20

















 


5.4                                 Top-Heavy
Provisions


 


5.4.1                        As
used in this Section 5.4, each of the following terms shall have the
meanings for that term set forth in this Section 5.4.1:


 


(a)                                  Determination
Date means, for any Plan Year subsequent to the first Plan Year, the last
day of the preceding Plan Year, and for the first Plan Year of the Plan, the
last day of such Plan Year.


 


(b)                                 Determination
Period means the Plan Year containing the Determination Date and the four
preceding Plan Years. Notwithstanding the foregoing, effective for Plan Years
beginning after December 31, 2001, Determination Period means the Plan
Year containing the Determination Date.


 


(c)                                  Key
Employee means any Employee or former Employee (and the beneficiaries of
such Employee) who, at any time during the “Determination Period,” was:


 


(i)            an officer of the
Company or an Affiliate having an annual Limitation Compensation greater than
50% of the Defined Benefit Dollar Limitation for any Plan Year within the
Determination Period or, effective for Plan Years beginning after December 31,
2001, an officer of the Company or an Affiliate having an annual Limitation
Compensation greater than $130,000 (as adjusted under Code Section 416(i)(1)(A));


 


(ii)           a “5% owner” (as
defined in Code Section 416(i)) of a Company or an Affiliate; or


 


(iii)          a “1 % owner” (as
defined in Code Section 416(i)) of a Company or an Affiliate who has an
annual Limitation Compensation in excess of $150,000.


 


(d)                                 Limitation
Compensation means an amount determined in accordance with Section 3.5.1(f
).


 


(e)                                  Non-Key
Employee means any Employee who is not a Key Employee.


 


(f)                                    Permissive
Aggregation Group means the Required Aggregation Group of plans plus any
other plan or plans of the Company or an Affiliate which, when considered as a
group with the Required Aggregation Group, would continue to satisfy the
requirements of Code Section 401(a)(4) and Code Section 410.


 


(g)                                 Required
Aggregation Group means (i) each Qualified Plan of the Company or an
Affiliate in which at least one Key Employee participates, and (ii) any
other Qualified Plan of the Company or an Affiliate which enables a plan
described in (i) to meet the requirements of Code Section 401(a)(4) and
Code Section 410.


 


(h)                                 Super
Top-Heavy Plan means the Plan, if the Top-Heavy Ratio, as determined under
the definition of Top-Heavy Plan, exceeds 90%.


 


21

















 


(i)                                     Top-Heavy
Plan means, for any Plan Year, the Plan if any of the following conditions
exists:


 


(i)            If the Top-Heavy Ratio
for the Plan exceeds 60% and the Plan is not part of any Required Aggregation
Group or Permissive Aggregation Group of plans.


 


(ii)           If the Plan is a part
of a Required Aggregation Group of plans but not part of a Permissive
Aggregation Group and the Top-Heavy Ratio for the Required Aggregation Group of
plans exceeds 60%.


 


(iii)          If the Plan is a part of
a Required Aggregation Group and part of a Permissive Aggregation Group of
plans and the Top-Heavy Ratio for the Permissive Aggregation Group exceeds 60%.


 


Solely for the purposes of determining whether the Plan or any other
plan included in an aggregation group is a Top-Heavy Plan, the accrued benefit
of a Non-Key Employee shall be determined (a) under the method, if any,
that uniformly applies foil accrual purposes under all plans maintained by the
Company and any Affiliate, or (b) if there is no such method, as if such
benefit accrued not more rapidly than the slowest accrual rate permitted under
the fractional accrual rate set forth in Code Section 411(b)(1)(C).


 


(j)                                     Top-Heavy
Ratio means, for the Plan alone, or for the Required or Permissive
Aggregation Group as appropriate, either (i) or (ii) or (iii) below:


 


(i)            If the Company or any
Affiliate maintains one or more Defined Contribution Plans (including any “simplified
employee pension” within the meaning of Code Section 408(k)) and the
Company or any Affiliate has never maintained any Defined Benefit Plan which,
during the one year period ending on the Determination Date, has or has had
accrued benefits, the Top-Heavy Ratio is a fraction, the numerator of which is
the sum of the account balances of all Key Employees as of the Determination
Date, and the denominator of which is the sum of all account balances, in each
case computed in accordance with Code Section 416; provided, however, that
the numerator and denominator of the Top-Heavy Ratio shall be adjusted to
reflect any contribution not actually made as of the Determination Date, but
which is required to be taken into account on that date under Code Section 416;
and further provided, however, that the numerator and denominator of the
Top-Heavy Ratio shall include any part of any account balance distributed
within the one year period ending on the Determination Date due to severance
from employment, separation from service, death, or disability, and shall also include
any part of any account balance distributed for any other reason within the
five year period ending on the Determination Date.


 


(ii)           If the Company or any
Affiliate maintains one or more Defined Contribution Plans (including any “simplified
employee pension” within the meaning of Code Section 408(k)) and the
Company or any Affiliate maintains or has maintained one or more Defined
Benefit Plans which, during the one year period ending on the Determination
Date, has or has had any accrued benefits, the Top-Heavy Ratio is a fraction,
the numerator of which is the sum of the account balances under the aggregated 


 


22

















 


Defined Contribution Plans for
all Key Employees, determined in accordance with (iv) above, plus the
present value of accrued benefits under the aggregated Defined Benefit Plans
for all Key Employees as of the Determination Date and the denominator of which
is the sum of the account balances under the aggregate Defined Contribution
Plans for all Participants, determined in accordance with (iv) above, plus
the present value of accrued benefits under the Defined Benefit Plans for all
such Participants as of the Determination Date, all determined in accordance
with Code Section 416; provided, however, that the numerator and
denominator of the Top-Heavy Ratio shall include any accrued benefit under a
Defined Benefit Plan distributed within the one year period ending on the
Determination Date due to severance from employment, separation from service, death,
or disability, and shall also include any part of any account balance
distributed for any other reason within the five year period ending on the
Determination Date.


 


(iii)          For purposes of
determining the Top-Heavy Ratio, the value of account balances will be
determined as of the most recent Top-Heavy Valuation Date that falls within or
ends with the twelve (12) month period ending on the Determination Date, except
as provided in Code Section 416 for the first and second plan years of a
Defined Benefit Plan. The account balances of any Participant who (a) is a
Non-Key Employee, but who was a Key Employee in a prior year, or (b) has
not performed an Hour of Service with the Company or any Affiliate at any time
during the one year period ending on the Determination Date, will be
disregarded. The calculation of the Top-Heavy Ratio, and the extent to which
distributions, rollovers and transfers are taken into account will be made in
accordance with Code Section 416. When aggregating plans, the value of
account balances will be calculated with reference to the Determination Dates
that fall within the same calendar year.


 


(k)                                  Top-Heavy
Valuation Date means the date as of which account balances, or accrued
benefits, are valued to calculate the Top-Heavy Ratio.


 


5.4.2                        If
the Plan is determined to be a Top-Heavy Plan as of any Determination Date,
then notwithstanding any Plan provision to the contrary, it shall be subject to
the rules set forth in the balance of this Section 5.4, beginning
with the first Plan Year commencing after such Determination Date.


 


5.4.3                        (a)           Except as provided in Section 5.4.3(b),
and except to the extent any other Defined Contribution Plan or Defined Benefit
Plan provides such minimum benefit to the Participant, for any Plan Year in
which the Plan is a Top-Heavy Plan, contributions and forfeitures allocated to
the Employer Account of any Participant who is a Non-Key Employee (whether or
not such Participant has completed 1,000 Hours of Service in that Plan Year) in
respect of that Plan Year shall not be less than the smaller of:


 


(i)            3% of such Participant’s
Limitation Compensation, or


 


(ii)           the largest percentage
of contributions and forfeitures, as a percentage of the Key Employee’s
Compensation, allocated to the Account of any Key Employee for that year.


 


23

















 


(b)           The
provision in (a) above shall not apply to any Participant who was not
employed by the Company or an Affiliate on the last day of the Plan Year.


 


5.4.4                        In
the event that any provision of this Section 5.4 is no longer required to
qualify the Plan under the Code, then such provision shall thereupon be void
without the necessity of further amendment of the Plan.


 


24

















 


ARTICLE VI


 


AMOUNT AND PAYMENT OF BENEFITS TO PARTICIPANTS,


 


6.1                                 Termination
of Employment


 


6.1.1                        Upon
a termination of Employment, a Participant shall be entitled to receive the
vested portion of his or her Account Balance, determined as of the Valuation
Date next following his or her Benefit Commencement Date, as determined under Section 6.1.2.


 


6.1.2                        (a)           Subject to (b) and
(c) below, and Section 6.2, a Participant’s Benefit Commencement Date
shall be the date determined under Section 6.1.3.


 


(b)           A
Participant who terminates Employment prior to his or her Normal Retirement
Date may make a written election (with Spousal Consent, if married) to receive
his or her vested Account Balance as of a date prior to his or her Normal
Retirement Date, provided such election is made during the 90-day period
preceding his Benefit Commencement Date. 
The Administrative Committee shall notify the Participant (and the
Participant’s Spouse, if any) of the right to any distribution until the
Participant’s Required Distribution Date. Such notification shall include a
general description of the material features of the optional forms of benefit
under the Plan in a manner which would satisfy the notice requirements of
Treasury Regulations Section 1.411(a)-l1. Such notice shall be provided no
less than 30 days and no more than 90 days prior to the Benefit Commencement
Date. However, distribution may commence less than 30 days after such notice is
provided, so long as (i) the Participant (and his or her Spouse, if
applicable) has been provided with information that clearly indicates that he
or she has at least 30 days to consider whether to consider the decision of
whether or not to elect a distribution; and (ii) the Participant (and his
or her Spouse, if applicable) affirmatively elects a distribution.


 


(c)           Notwithstanding
(b) above, if a Participant’s vested Account Balance does not exceed
$1,000, the Participant’s vested Account Balance under this Plan shall be paid
to him or her in a lump sum distribution as soon as practicable following his
or her Termination of Employment. For this purpose, if a Participant does not
have a vested interest in his or her Account (and thus is not entitled to any
distribution from such Account), the Participant shall be deemed to have
received a complete distribution of his or her interest in such Account upon
termination of Employment.


 


6.1.3                        Unless
the Participant otherwise elects, in no event shall he or she begin to receive
a benefit later than the sixtieth day after the close of the Plan Year in which
the latest of the following events occurs:


 


(a)           the
date the Participant attains his or her Normal Retirement Age;


 


(b)           the
Participant’s Termination of Employment; or


 


(c)           the
10th anniversary of the year in which the Participant commenced participation
in the Plan.


 


25
















 


Notwithstanding the foregoing, a Participant who terminates employment
may elect to defer receipt of his or her benefit until his or her Required
Beginning Date.


 


6.2           Age 70-1/2
Distributions


 


Distribution of a Participant’s vested Account Balance shall be subject
to the requirements of this Section 6.2 and Section 8.3 and shall be
made in accordance with Code Section 401(a)(9) and the regulations
thereunder. With respect to distributions under the Plan made for calendar
years beginning on or after January 1, 2002, Section 6.4 shall apply
the minimum distribution requirements of Code Section 401(a)(9).


 


6.3           No In-Service
Withdrawals or Loans


 


There shall be no distributions to Participants prior to Termination of
Employment, except as provided in Section 6.2 above, and there shall be no
loans to Participants or beneficiaries.


 


6.4           Minimum Required
Distributions


 


6.4.1        General Requirements


 


(a)           Effective
Date.  The provisions of this Section will
apply for purposes of determining required minimum distributions for calendar
years beginning with the 2002 calendar year.


 


(b)           Coordination
with Minimum Distribution Requirements Previously in Effect.  The required minimum distributions for 2002
under this Section will be determined as follows.  If the total amount of 2002 required minimum
distributions under the Plan made to the distributee prior to the effective
date of this Section equals or exceeds the required minimum distributions
determined under this Section, then no additional distributions will be
required to be made for 2002 on or after such date to the distribute.  If the total amount of 2002 required minimum
distributions under the Plan made to the distribute prior to the effective date
of this Section is less than the amount determined under this Section,
then required minimum distributions for 2002 on and after such date will be
determined so that the total amount of required minimum distributions for 2002
made to the distribute will be the amount determined under this Section.


 


(c)           Precedence.  The requirements of this Section will
take precedence over any inconsistent provisions of the Plan.


 


(d)           Requirements
of Treasury Regulations Incorporated. 
All distributions required under this Section will be determined
and made in accordance with the Treasury regulations under Code Section 401(a)(9).


 


6.4.2        Time and Manner of
Distribution


 


(a)           Required
Beginning Date.  The Participant’s
entire interest will be distributed, or begin to be distributed, to the
Participant no later than the Participant’s required beginning date.


 


26

















 


 


(b)           Death
of Participant Before Distributions Begin. 
If the Participant dies before distributions begin, the Participant’s
entire interest will be distributed, or begin to be distributed, no later than
as follows:


 


(i)            If the Participant’s
Surviving Spouse is the Participant’s sole designated beneficiary, then, except
as provided in Article VIII, distributions to the Surviving Spouse will
begin by December 31 of the calendar year immediately following the
calendar year in which the Participant died, or by December 31 of the
calendar year in which the Participant would have attained age 70-1/2, if
later.


 


(ii)           If the Participant’s
Surviving Spouse is not the Participant’s sole designated beneficiary, then,
except as provided in Article VIII, distributions to the designated
beneficiary will begin by December 31 of the calendar year immediately
following the calendar year in which the Participant died.


 


(iii)          If there is no
designated beneficiary as of September 30 of the year following the year
of the Participant’s death, the Participant’s entire interest will be
distributed by December 31 of the calendar year containing the fifth
anniversary of the Participant’s death.


 


(iv)          If the Participant’s
Surviving Spouse is the Participant’s sole designated beneficiary and the
Surviving Spouse dies after the Participant but before distributions to the
Surviving Spouse begin, this subsection 6.4.2(b), other than subsection
6.4.2(b)(i), will apply as if the Surviving Spouse were the Participant.


 


For purposes of
this subsection 6.4.2(b) and subsection 6.4.4, unless subsection 6.4.2(b)(iv) applies,
distributions are considered to begin on the Participant’s required beginning
date.  If subsection 6.4.2(b)(iv) applies,
distributions are considered to begin on the date distributions are required to
begin to the Surviving Spouse under subsection 6.4.2(b)(i).  If distributions under an annuity purchased
from an insurance company irrevocably commence to the Participant before the
Participant’s required beginning date or to the Participant’s Surviving Spouse
before the date distributions are required to begin to the Surviving Spouse
under subsection 6.4.2(b)(i), the date distributions are considered to begin is
the date distributions actually commence.


 


(c)           Forms
of Distribution.  Unless the
Participant’s interest is distributed in the form of an annuity purchased from
an insurance company or in a single sum on or before the required beginning
date, as of the first distribution calendar year distributions will be made in
accordance with subsections 6.4.2(b)(i) and 6.4.4 of this Section.  If the Participant’s interest is distributed
in the form of an annuity purchased from an insurance company, distributions
thereunder will be made in accordance with the requirements of Code Section 401(a)(9) and
the Treasury regulations.


 


27

















 


6.4.3        Required Minimum
Distributions During Participant’s Lifetime


 


(a)           Amount
of Required Minimum Distribution for Each Distribution Calendar Year.  During the Participant’s lifetime, the
minimum amount that will be distributed for each distribution calendar year is
the lesser of:


 


(i)            the quotient obtained
by dividing the Participant’s account balance by the distribution period in the
Uniform Lifetime Table set forth in Treas. Reg. §1.401(a)(9)-9, using the
Participant’s age as of the Participant’s birthday in the distribution calendar
year; or


 


(ii)           if the Participant’s
sole designated beneficiary for the distribution calendar year is the
Participant’s Spouse, the quotient obtained by dividing the Participant’s
account balance by the number in the Joint and Last Survivor Table Treas. Reg.
§1.401(a)(9)-9, using the Participant’s and Spouse’s attained ages as of the
Participant’s and Spouse’s birthdays in the distribution calendar year.


 


(b)           Lifetime
Required Minimum Distributions Continue Through Year of Participant’s Death.  Required minimum distributions will be
determined under this subsection 6.4.3 beginning with the first distribution
calendar year and up to and including the distribution calendar year that
includes the Participant’s date of death.


 


6.4.4        Required Minimum
Distributions After Participant’s Death


 


(a)           Death
On or After Date Distributions Begin


 


(i)            Participant
Survived by Designated Beneficiary. 
If the Participant dies on or after the date distributions begin and
there is a designated beneficiary, the minimum amount that will be distributed
for each distribution calendar year after the year of the Participant’s death
is the quotient obtained by dividing the Participant’s account balance by the
longer of the remaining life expectancy of the Participant or the remaining
life expectancy of the Participant’s designated beneficiary, determined as
follows:


 


(A)          The Participant’s
remaining life expectancy is calculated under the age of the Participant in the
year of death, reduced by one for each subsequent year.


 


(B)           If the Participant’s
Surviving Spouse is the Participant’s sole designated beneficiary, the
remaining life expectancy of the Surviving Spouse is calculated for each
distribution calendar year after the year of the Participant’s death using the
Surviving Spouse’s age as of the Spouse’s birthday in that year.  For distribution calendar years after the
year of the Surviving Spouse’s death, the remaining life expectancy of the
Surviving Spouse is calculated using the age of the Surviving Spouse as of the
Spouse’s birthday in the calendar year of the Spouse’s death, reduced by one for
each subsequent calendar year.


 


28

















 


(C)           If the Participant’s
Surviving Spouse is not the Participant’s sole designated beneficiary, the
designated beneficiary’s remaining life expectancy is calculated using the age
of the beneficiary in the year following the year of the Participant’s death,
reduced by one for each subsequent year.


 


(ii)           No Designated
Beneficiary.  If the Participant dies
on or after the date distributions begin and there is no designated beneficiary
as of September 30 of the year after the year of the Participant’s death,
the minimum amount that will be distributed for each distribution calendar year
after year of the Participant’s death is the quotient obtained by dividing the
Participant’s account balance by the Participant’s remaining life expectancy
calculated using the age of the Participant in the year of death, reduced by
one for each subsequent year.


 


(b)           Death
Before Date Distributions Begin.


 


(i)            Participant
Survived by Designated Beneficiary. 
Except as provided in Article VIII, if the Participant dies before
the date distributions begin and there is a designated beneficiary, the minimum
amount that will be distributed for each distribution calendar year after the
year of the Participant’s death is the quotient obtained by dividing the
Participant’s account balance by the remaining life expectancy of the
Participant’s designated beneficiary, determined as provided in subsection
6.4.4(a).


 


(ii)           No Designated
Beneficiary.  If the Participant dies
before the date distributions begin and there is no designated beneficiary as
of September 30 of the year following the year of the Participant’s death,
distribution of the Participant’s entire interest will be completed by December 31
of the calendar year containing the fifth anniversary of the Participant’s
death.


 


(iii)          Death of Surviving
Spouse Before Distributions to Surviving Spouse Are Required to Begin.  If the Participant dies before the date
distributions begin, the Participant’s Surviving Spouse is the Participant’s
sole designated beneficiary, and the Surviving Spouse dies before distributions
are required to begin to the Surviving Spouse under subsection 6.4.2(b)(i),
this subsection 6.4.4(b) will apply as if the Surviving Spouse were the
Participant.


 


6.4.5        Definitions


 


For
purposes of this Section 6.4, the following definitions shall apply:


 


(a)           Designated
beneficiary.  The individual who is
designated as the Beneficiary under the Plan and is the designated beneficiary
under Code Section 401(a)(9) and Treas. Reg. §1.401(a)(9)-1,
Q&A-4.


 


(b)           Distribution
calendar year.  A calendar year for
which a minimum distribution is required. 
For distributions beginning before the Participant’s death, the first
distribution calendar year is the calendar year immediately preceding the
calendar year which contains the Participant’s required beginning date.  For distributions beginning after the
Participant’s death, 


 


29

















 


the first
distribution calendar year is the calendar year in which distributions are
required to begin under subsection 6.4.2(b). 
The required minimum distribution for the Participant’s first
distribution calendar year will be made on or before the Participant’s required
beginning date.  The required minimum
distribution for other distribution calendar years, including the required
minimum distribution for the distribution calendar year in which the
Participant’s required beginning date occurs, will be made on or before December 31
of that distribution calendar year.


 


(c)           Life
expectancy.  Life expectancy as
computed by use of the Single Life Table in Treas. Reg. §1.401(a)(9)-9.


 


(d)           Participant’s
account balance.  The account balance
as of the last valuation date in the calendar year immediately preceding the
distribution calendar year (valuation calendar year) increased by the amount of
any contributions made and allocated or forfeitures allocated to the account
balance as of dates in the valuation calendar year after the valuation date and
decreased by distributions made in the valuation calendar year after the
valuation date.  The account balance for
the valuation calendar year includes any amounts rolled over or transferred to
the Plan either in the valuation calendar year or in the distribution calendar
year if distributed or transferred in the valuation calendar year.


 


(e)           Required
beginning date.  The date specified
in the Plan when distributions under Code Section 401(a)(9) are
required to begin.


 


30

















 


ARTICLE VII


 


FORMS OF PAYMENT OF ACCOUNTS


 


7.1           Methods of
Distribution


 


For married Participants, the “Normal Form” of benefit is a Qualified
Joint and Survivor Annuity. For Participants who do not have a spouse on their
Benefit Commencement Dates, the Normal Form of benefit is a single life
Annuity purchased from an insurance company with the Participant’s distribution
amount which is payable for the Participant’s life. All distributions from a
Participant’s vested Account under Article VI shall be distributed in the
Normal Form unless the Participant elects one of the following optional
forms of distribution in accordance with Section 7.2:


 


(a)           a
lump sum distribution;


 


(b)           an
Annuity Contract which may be purchased from an insurance company with the
Participant’s distribution amount;


 


(c)           on
or after April 3, 2000, monthly, quarterly or annual installments of the
Participant’s distribution payable over any period not exceeding the life
expectancy of the Participant or the joint life expectancies of the Participant
and the Participant’s designated Beneficiary.


 


(d)           effective
as of January 1, 2008, any married Participant, with an Annuity Starting
Date after that date may elect a Qualified Optional Survivor Annuity or may
elect to waive such form of benefit in accordance with Code Section 417(a)(1)(A).  A “Qualified Optional Survivor Annuity” shall
mean an annuity which is payable for the life of the Participant with a
survivor annuity continuing after the Participant’s death to the Participant’s
Surviving Spouse for the Surviving Spouse’s life in amount which is equal to
75% of the amount of the annuity which is payable during the joint lives of the
Participant and the Surviving Spouse.


 


Distributions shall be subject to the requirements of Code Section 401(a)(9).
Effective as of April 3, 2000, a Participant who has elected to receive an
installment distribution may at any time elect to discontinue such installment
payments and have the unpaid vested Account Balance paid in a lump sum distribution.
In the event a Participant who has elected to receive an installment
distribution dies after his or her Benefit Commencement Date but before the
payment of the final installment, the unpaid installments shall be paid to the
Participant’s Beneficiary. The Beneficiary may elect to continue receiving such
installments or to have the unpaid vested Account Balance paid in a lump sum
distribution. In the event a Participant dies before his or her Benefit
Commencement Date, any election of a form of payment shall be void, and the
Participant’s vested Account Balance shall be distributed in accordance with Article VIII.


 


7.2           Election of Optional
Forms


 


7.2.1        At any time within the
90-day period preceding a Participant’s Benefit Commencement Date, the Participant
may elect in writing not to receive the Normal Form of benefit and to
receive instead an optional form of benefit payment provided for in Section 7.1.
Married 


 


31

















 


Participants
must have Spousal Consent in order to waive the Normal Form and elect an
optional benefit form. Any Spousal Consent to a Participant’s election of an
optional form of benefit shall specify the form of benefit and the Beneficiary.


 


7.2.2        The Administrative
Committee shall provide to each Participant, within the period beginning 180
days before and ending 30 days before the Participant’s Benefit Commencement
Date, a written explanation in non-technical terms of:


 


(a)           the
terms and conditions of the Qualified Joint and Survivor Annuity and the
optional forms of benefit;


 


(b)           the
Participant’s right to make, and the effect of, an election to waive the
Qualified Joint and Survivor Annuity;


 


(c)           the
rights of the Participant’s Spouse under this Section 7.2;


 


(d)           the
right to make, and the effect of, a revocation of a previous election to waive
the Qualified Joint and Survivor Annuity; and


 


(e)           if
applicable, the right to defer distribution until Normal Retirement Age.


 


Notwithstanding the foregoing, the Administrative Committee may provide
a Participant with the above written explanation after the Participant’s
Benefit Commencement Date so long as the actual distribution does not commence
until at least 30 days after such written explanation is provided, subject to Section 7.2.3.
The Administrative Committee may, on a uniform and nondiscriminatory basis,
provide for such other notices, information or election periods or take such
other action as the Administrative Committee considers necessary or appropriate
so that this Section 7.2 is implemented in such a manner as to comply with
Code Section 401(a)(11) and Code Section 417.


 


7.2.3        Notwithstanding Section 7.2.2
above, distribution of a Participant’s benefit may begin less than 30 days
after receipt of the written explanation if:


 


(a)           The
Participant has been provided with information that clearly indicates that he
or she has at least 30 days to consider whether to waive the Qualified Joint
and Survivor Annuity; and


 


(b)           The
Participant is permitted to revoke any affirmative election at least until the
Benefit Commencement Date or, if later, at any time within the seven-day period
beginning the day after the written explanation is provided.


 


7.2.4        A Participant may revoke
his or her election to take an optional form of benefit without Spousal Consent
and take the Qualified Joint and Survivor Annuity or elect a different optional
form of benefit in accordance with Section 7.2 at any time within the
90-day period prior to the Participant’s Benefit Commencement Date. The number
of revocations shall not be limited.


 


32

















 


7.3           Direct Rollovers


 


7.3.1        Notwithstanding any
provision in this Plan to the contrary, a Participant or a Beneficiary who is
the Surviving Spouse of a Participant may elect to have all or a portion of any
amount payable to him or her from the Plan which is an “eligible rollover
distribution” (as defined in Section 7.3.2 below) transferred directly to
an “eligible retirement plan” (as defined in Section 7.3.2 below). Any
such election shall be made in accordance with such uniform rules and
procedures as the Administrative Committee may prescribe from time to time as
to the time and manner of the election in accordance with Code Section 401(a)(31).


 


7.3.2        Definitions for
purposes of this Section 7.3


 


(a)           “Eligible
rollover distribution” shall mean any distribution of all or any portion of the
balance to the credit of the distributee other than: (1) any distribution
that is one of a series of substantially equal periodic payments (not less frequently
than annually) made for the life (or life expectancy) of the distributee or the
joint lives (or joint life expectancies) of the distributee and the distributee’s
designated beneficiary; (2) any distribution for a specified period of ten
years or more; (3) any distribution to the extent such distribution is
required under Code Section 401(a)(9); or (4) the portion of any
distribution that is not includable in gross income.


 


(b)           “Eligible
retirement plan” shall mean, with respect to a Participant, an individual
retirement account or annuity described in Code Section 408(a) or
408(b)(“IRA”), an annuity plan described in Code Section 403(a) or a
qualified plan described in Code Section 401(a) that accepts the
distributee’s eligible rollover distribution. Notwithstanding the foregoing,
effective for distributions made after December 31, 2001, an eligible
retirement plan shall also mean an annuity contract described in Code Section 403(b) and
an eligible plan under Code Section 457(b) which is maintained by a
state, political subdivision of a state, or any agency or instrumentality of a
state or political subdivision of a state and which agrees to separately
account for amounts transferred into such plan from this Plan.  Effective as of January 1, 2008, an eligible
retirement plan shall also mean a Roth IRA (as defined in Code Section 408A);
provided, however, for taxable years beginning prior to January 1, 2010, a
distributee shall not be permitted to make a qualified rollover distribution
(as defined in Code Section 408A(e)) from the Plan to a Roth IRA if, for
the year the eligible rollover distribution is made, the Participant has a
modified adjusted gross income exceeding $100,000 or is married and files a
separate return (as provided in Code Section 408A(c)(3)(b)).


 


33

















 


ARTICLE VIII


 


DEATH BENEFITS


 


8.1           Payment of Account
Balances


 


8.1.1        In the event of the death
of a Participant while an Employee, the Participant’s entire Account Balance
shall be payable to his or her Beneficiary. In the event of the death of a
Participant after Termination of Employment but before his or her Benefit
Commencement Date, the Participant’s vested Account Balance shall be payable to
his or her Beneficiary. In the event of a Participant’s death after his or her
Benefit Commencement Date, any unpaid vested Account Balance shall be payable
in accordance with the form of benefit elected by the Participant under Article VII.


 


8.1.2        (a)           Except in the event of a Participant’s death
after the distribution of his or her benefit has begun, if the Participant’s
Beneficiary is the Participant’s Surviving Spouse, the benefit payable under Section 8.1.1
shall be paid in the form of a Qualified Pre-Retirement Survivor Annuity unless
the Surviving Spouse elects one of the optional forms available under Section 7.1
in lieu of the Qualified Pre-Retirement Survivor Annuity within the 90-day
period preceding the Benefit Commencement Date. This election must satisfy the
requirements of Section 7.2. Such Qualified Pre-Retirement Survivor
Annuity benefit shall be payable as soon as practicable after the Participant’s
death, provided that distribution shall not be made prior to the date which
would have been the Participant’s Normal Retirement Date without the Surviving
Spouse’s written consent. Notwithstanding the preceding two sentences, if the
benefit payable to a Surviving Spouse under Section 8.1.1 does not exceed
$1,000 it shall be paid as soon as practicable following the Participant’s
death in a lump sum distribution. A Surviving Spouse to whom a lump sum
distribution is payable may elect a direct rollover to the extent permitted by Section 7.3.


 


(b)           If
the Participant’s Beneficiary is not the Participant’s Surviving Spouse, the
benefit payable under Section 8.1.1 shall be payable as soon as
practicable after the Participant’s death in a lump sum distribution unless the
Beneficiary instead elects one of the optional forms of benefit available under
Section 7.1.


 


8.2           Beneficiary


 


8.2.1        Subject to Sections 8.2.2
and 8.2.3 below, a Participant may, with Spousal Consent (if married),
designate a person or persons as his or her Beneficiary by filing a written
designation of Beneficiary with the Administrative Committee in the time and
manner established by the Committee. If no valid designation of Beneficiary is
in effect at the time of the Participant’s death, or if the designated
Beneficiary does not survive the Participant, the Beneficiary shall be the
Participant’s Surviving Spouse or, if there is no Surviving Spouse, the
Participant’s estate. For this purpose, if the Participant and the Beneficiary
die simultaneously, or if there is not sufficient evidence to establish who
died first, the Participant shall be deemed to have survived the Beneficiary.


 


34

















 


8.2.2        (a)           Except as provided in (b) below, a
married Participant may only waive the Qualified Pre-Retirement Survivor
Annuity form of benefit and designate someone other than his or her Spouse as
Beneficiary after the first day of the Plan Year in which the Participant
reaches age 35 or, if earlier, after the date the Participant terminates
Employment, in accordance with Section 8.2.1 above. Such a waiver and
Beneficiary designation shall not be valid unless the Participant receives,
within the period beginning on the first day of the Plan Year in which the
Participant attains age 32 and ending with the close of the Plan Year in which
the Participant attains age 35, a written explanation of the Qualified Pre-Retirement
Survivor Annuity in such terms and in such manner as would be compared to the
explanation provided for meeting the requirements applicable to a Qualified
Joint and Survivor Annuity in Section 7.2 above and must satisfy
requirements comparable to those provided in Section 7.2, including notice
and Spousal Consent requirements.


 


(b)           A
married Participant who will not have attained age 35 as of the end of the
current Plan Year may make a special qualified election to waive the Qualified
Pre-Retirement Survivor Annuity form of benefit and may, in accordance with Section 8.2.1
above, designate a non-Spouse Beneficiary. Such election shall not be valid
unless the Participant receives a written explanation of the Qualified
Pre-Retirement Survivor Annuity in such terms as are comparable to the
explanation required under Section 7.2. Qualified Pre-Retirement Survivor
Annuity coverage will be automatically reinstated as of the first day of the
Plan Year in which the Participant attains age thirty-five (35). Any new waiver
on or after such date shall be subject to the full requirements of this
Section. Such election shall be automatically revoked on the first day of the
Plan Year in which the Participant will reach age 35. The Participant’s Spouse
will then be his or her Beneficiary unless the Participant makes another
designation of Beneficiary in accordance with Section 8.2.1 above. The
Administrative Committee shall provide a married Participant with a notice
similar to that provided under Section 7.2.2 with respect to a Participant’s
right to designate someone other than his or her Spouse as Beneficiary. Such
notice shall be provided within the one year period ending after the date the
individual first becomes a Participant.


 


8.2.3        Any prior designation of a
Beneficiary shall be automatically revoked upon the subsequent marriage or
remarriage of the Participant.


 


8.2.4        To the extent permitted by
law and subject to any valid qualified domestic relations order (as defined in
Code Section 414(p)), a Participant’s designation of his or her Spouse as
Beneficiary shall be automatically revoked upon the Participant’s subsequent
divorce. The Participant shall not be prevented from re-designating a former
Spouse as his or her Beneficiary following a divorce.


 


8.3           Required
Commencement


 


Notwithstanding any other provision of the Plan to the contrary, if a
Participant dies before his or her Benefit Commencement Date, the Participant’s
entire interest must be distributed within five years after the year containing
the Participant’s death, except that if the designated Beneficiary is the
Participant’s Surviving Spouse, then distributions must begin within the year
containing (a) the one-year anniversary of the Participant’s death or, if
later, (b) the date the Participant would have attained age 70%.


 


35
















 


ARTICLE IX


 


FIDUCIARIES


 


9.1           Named Fiduciaries


 


9.1.1        The Administrative
Committee (or its delegate) shall be a “named fiduciary” (within the meaning of
Section 402(a)(2) of ERISA) of the Plan, with authority to control
and manage the operation and administration of the Plan.


 


9.1.2        The Company (or its
delegate) shall be the “administrator” and “plan administrator” (within the
meaning of ERISA Section 3(16)(A) and Code Section 414(g),
respectively) with respect to the Plan.


 


9.1.3        The Trustee shall be a “named
fiduciary” (within the meaning of ERISA Section 402(a)(2)) of the Plan,
with the authority to manage and control Trust assets in accordance with the
terms of the Trust Agreement.


 


9.1.4        There are no “named
fiduciaries” of the Plan other than the Administrative Committee and the
Trustee.


 


9.2           Employment of
Advisers


 


Each named fiduciary shall be authorized, to the extent it deems
advisable, to designate persons who are not named fiduciaries to carry out
fiduciary responsibilities allocated to it, to retain accountants, agents,
attorneys, actuaries and other professional consultants and to rely upon
information, statistics or analysis provided by any of such persons.


 


9.3           Multiple Fiduciary
Capacities


 


Any “named fiduciary” with respect to the Plan (as defined in ERISA Section 402(a)(2))
and any other “fiduciary” (as defined in ERISA Section 3(21)) with respect
to the Plan may serve in more than one fiduciary capacity.


 


9.4           Payment of Expenses


 


The reasonable expenses incident to the operation of the Plan,
including, without limitation, the compensation of the Trustee, consultants,
attorneys, fiduciaries and other advisors, shall be paid out of the Trust to
the extent permitted by law and to the extent not paid by the Employer. All
members of the Administrative Committee shall serve without compensation from
the Trust. Any determination by the Employer to pay all or part of any expense
shall not in any way limit the Employer’s right to determine to have similar or
other expenses paid out of the Trust assets at any other time.


 


9.5           Indemnification


 


To the extent not prohibited by state or federal law, the Company and
each Participating Affiliate, jointly and severally, agree to, and shall,
indemnify and hold harmless any member of 


 


36

















 


the Administrative Committee or any other Employee, officer or director
of an Employer from all claims for liability, loss, damage or expense
(including payment of reasonable expenses in connection with defense against
any such claim) which result from any exercise or failure to exercise any of
the indemnified person’s responsibilities with respect to the Plan, other than
by reason of willful misconduct or a willful failure to act.


 


37

















 


ARTICLE X


 


TRUSTEE AND TRUST FUND


 


10.1         Establishment of Trust


 


A Trust Agreement shall be executed between the Company and the
Trustee, which agreement shall provide for the creation of the Trust to receive
and hold all contributions and earnings therefrom. Benefits provided under the
Plan and expenses of administration of the Plan shall be paid from the assets
held in the Trust as directed by the Administrative Committee and the Company,
respectively.


 


10.2         Powers and Duties of
the Trustee


 


10.2.1      The Trustee shall have
exclusive authority and discretion to manage and control the assets of the Plan
in accordance with the terms of the Trust Agreement.


 


10.3         Exclusive Benefit


 


Except as provided in Section 3.7, the Trust shall be maintained
for the exclusive purpose of providing Plan benefits to Participants and their
Beneficiaries and paying the expenses of administration of the Plan and the
Trust to the extent not paid by the Employer.


 


10.4         Delegation of
Responsibility


 


The Trustee may designate persons, including persons other than “named
fiduciaries” (as defined in ERISA Section 402(a)(2)), to carry out the
specified responsibilities of the Trustee and shall not be liable for any act
or omission of a person so designated.


 


38

















 


ARTICLE XI


 


PLAN ADMINISTRATION


 


11.1         The Administrative
Committee


 


11.1.1      Administrative Committee
members shall be appointed by the Company and may be removed by the Company at
its discretion.  Unless the Company
otherwise provides, any member of the Administrative Committee who is an
Employee of the Company or an Affiliate at the time of his or her appointment
will be considered to have resigned from the Administrative Committee when no
longer an Employee. Employees of the Company or an Affiliate shall receive no
compensation for their services rendered to or as members of the Administrative
Committee.


 


11.1.2      If more than one member is
appointed, the Administrative Committee shall act by a majority of its members
at the time in office, and such action may be taken either by a vote at a
meeting or in writing without a meeting. However, if less than three members
are appointed, the Administrative Committee shall act only upon the unanimous
consent of its members. The Administrative Committee may authorize in writing
any person to execute any document or documents on its behalf, and any
interested person, upon receipt of notice of such authorization directed to it,
may thereafter accept and rely upon any document executed by such authorized
person until the Administrative Committee shall deliver to such interested
person a written revocation of such authorization.


 


11.1.3      A member of the
Administrative Committee who is also a Participant shall not vote or act upon
any matter relating solely to himself or herself unless such person is the sole
member of the Administrative Committee.


 


11.2         Administrative
Committee Powers and Duties


 


The Administrative Committee is allocated such duties and powers as may
be necessary to discharge its duties hereunder including, without limitation,
the exclusive and discretionary authority to perform the following functions:


 


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


 


(b)           To
interpret and construe the Plan, to resolve any ambiguities and to decide any
and all matters arising hereunder including, without limitation, questions of
fact as to eligibility to participate in the Plan or receive benefits under the
Plan or the amount and timing of benefits under the Plan; provided,  however,
that all such interpretations and decisions shall be applied in a uniform and
nondiscriminatory manner to all similarly situated persons and shall be
conclusively binding upon all persons interested in the Plan. The
Administrative Committee has discretionary authority to grant or deny benefits
under this Plan. Benefits under the Plan will be provided only if the
Administrative Committee decides, in its sole discretion, that the applicant is
entitled to them;


 


(c)           To
select the Investment Funds;


 


39

















 


(d)           To
appoint one or more insurance companies;


 


(e)           To
appoint one or more Investment Managers;


 


(f)            To
establish and carry out a funding policy and method consistent with the
objectives of the Plan and the requirements of ERISA;


 


(g)           To
monitor the limits on contributions under Article III and to take action
to assure that such limits are satisfied for each Plan Year;


 


(h)           To
authorize disbursements from the Trust;


 


(i)            To
prescribe procedures to be followed by Participants or Beneficiaries who file
applications for benefits;


 


(j)            To
approve the design of enrollment forms, Beneficiary designation forms and any
other forms utilized in the administration of the Plan;


 


(k)           To
prepare and distribute, in such manner as the Administrative Committee
determines to be appropriate, information concerning the Plan;


 


(l)            To
receive from the Employer and from Participants such information as shall be
necessary for the proper administration of the Plan;


 


(m)          To
establish such written procedures as it shall deem necessary or proper to
determine the qualified status, pursuant to Code Section 414(p) of
any domestic relations order received by the Administrative Committee which
affects the right of a Participant and any alternate payee to payment of
benefits under the Plan, and to administer distributions pursuant to any
domestic relations order which the Administrative Committee determines to be a
qualified domestic relations order within the meaning of Code Section 414(p).  However,
effective April 6, 2007, a domestic relations order shall not fail
to be treated as a “qualified domestic relations order” solely because (1) the
order is issued after, or revises, another domestic relations order or
qualified domestic relations order, and/or (2) solely because of the time
at which it is issued; provided, however, any such domestic relations order
shall be subject to the same requirements and protections that apply to
qualified domestic relations orders under ERISA § 206(d)(3);


 


(n)           To
delegate, by written instrument to one or more administrative subcommittees
with respect to each Employer, such of the powers and duties allocated herein
to the Administrative Committee as it deems advisable; any such subcommittee
shall consist of persons appointed by the Administrative Committee, taking into
consideration designations recommended by the principal executive officer of
any Employer; and


 


(o)           To
make recommendations to the Company concerning amendments to the Plan.


 


11.3         Claims Procedure


 


The Administrative hereby adopts the procedure set forth below for
reviewing benefits claims under the Plans:


 


40

















 


(a)           A
Participant or Beneficiary shall submit all claims for benefits under the Plans
in writing to the Administrative Committee.


 


(b)           The
Administrative Committee shall send to the Participant or Beneficiary written
notice of its decision within ninety (90) days of receiving the claim. The
period may be extended to one hundred eighty (180) days if the Administrative
Committee notifies the claimant in writing within the initial ninety (90) day
period that special circumstances exist which require an extension of the
period.  The written decision from the
Administrative Committee shall set forth:


 


(i)            the specific reasons
for the decision;


 


(ii)           the specific Plan
provisions upon which the decision is based;


 


(iii)          a description of any
additional material or information necessary for the Participant or Beneficiary
to perfect the claim for benefits and an explanation of the reasons why such
material or information is necessary;


 


(iv)          information regarding
procedures for submitting a request for review of the decision on the claim;
and


 


(v)           a statement of the
claimant’s right to bring an action under ERISA Section 502(a) following
an adverse benefit determination on review.


 


(c)           If
the Administrative Committee denies the claim in whole or in part, the
Participant or Beneficiary may submit a written request for review to the
Administrative Committee within sixty (60) days of the notice of denial,
pursuant to the procedures referenced in paragraph (b)(iv) above. The
Participant or Beneficiary shall set forth all the grounds upon which the
request for review is based and may submit issues or comments in writing. The
Participant or Beneficiary shall also be entitled to receive, upon request and
free of charge, reasonable access to, and copies of, all documents, records,
and other information relevant to the claim for benefits.


 


(d)           The
Administrative Committee shall send the Participant or Beneficiary written
notice of its decision within sixty (60) days after the Administrative
Committee receives the request for review. The review period may be extended to
one hundred twenty (120) days if the Administrative Committee notifies the
claimant within the initial sixty (60) day period that special circumstances
exist which require an extension of the review period. The Administrative
Committee’s written decision shall set forth the specific reasons for the
decision and the Plan provision on which the decision is based. The
Administrative Committee’s written decision shall also include a statement that
the claimant is entitled to receive, upon request and free of charge, reasonable
access to, and copies of, all documents, records, and other information
relevant to the claimant’s claim for benefits, and a statement of the claimant’s
right to bring an action under ERISA Section 502(a). All such decisions of
the Administrative Committee shall be final, conclusive and binding upon all
Participants, Beneficiaries, and other interested persons.


 


(e)           If
applicable, claims for benefits due to Disability shall be decided in
accordance with Section 2560.503-1 of the U.S. Department of Labor
regulations.


 


41

















 


11.4         Delegation of
Responsibility


 


The Administrative Committee may designate persons, including persons
other than “named fiduciaries” (as defined in ERISA Section 402(a)(2)), to
carry out the specified responsibilities of the Administrative Committee and
shall not be liable for any act or omission of a person so designated.


 


42

















 


ARTICLE XII


 


MANAGEMENT, CONTROL AND INVESTMENT OF PLAN ASSETS


 


12.1         Investment Funds


 


12.1.1      The Administrative Committee
may establish one or more Investment Funds as it shall from time to time
determine for the investment of a Participant’s Accounts. Notwithstanding the
foregoing, the Administrative Committee, in accordance with Section 404(c) of
ERISA, shall make available at all times at least three investment
alternatives, each of which is diversified and has materially different risk
and return characteristics. The investment alternatives in the aggregate shall
enable each Participant, by choosing among them, to achieve a portfolio with
aggregate risk and return characteristics at any point within the range
normally appropriate for the Participant and which, in the aggregate, tend to
minimize through diversification the overall risk of the Participant’s
portfolio. The Plan is intended to constitute a plan described in Section 404(c) of
ERISA and Section 2550.404c-1 of the Department of Labor Regulations, such
that, to the extent applicable, the fiduciaries of the Plan may be relieved of
liability for any losses that are the direct and necessary result of the
investments instructions given by Participants and Beneficiaries under the
Plan.


 


12.1.2      Each Participant shall
exercise control over the assets in his Accounts and is solely responsible for
his investment elections. The Plan fiduciaries are not empowered to advise a
Participant as to the manner in which his Accounts shall be invested. The fact
that an Investment Fund is available to Participants for investment under the
Plan shall not be construed as a recommendation for investment in that fund.


 


12.2         Valuation of Accounts


 


A Participant’s Accounts shall be revalued at fair market value on each
Valuation Date, with earnings and losses since the previous Valuation Date
being credited to the Participant’s Account. Earnings and losses of the
particular Investment Funds shall be allocated in the ratio that the portion of
the Account Balance of a Participant invested in a particular Investment Fund
bears to the total amount invested in such fund.


 


12.3         Investment in
Insurance Contract


 


The Administrative Committee may appoint one or more insurance
companies to hold assets of the Plan, and may purchase insurance contacts or
policies from one or more insurance companies with assets of the Plan. Neither
the Trustee nor the Administrative Committee shall be liable for any act or
omission of an insurance company with respect to any duties delegated to any
insurance company.


 


12.4         The Investment Manager


 


12.4.1      The Administrative Committee
may, by an instrument in writing, appoint one or more persons as an Investment
Manager. Each person so appointed shall be (a) an investment adviser
registered under the Investment Advisers Act of 1940, (b) a bank as
defined in that Act, or (c) an 


 


43

















 


insurance
company qualified to manage, acquire or dispose of any asset of the Plan under
the laws of more than one state.


 


12.4.2      Each Investment Manager
shall acknowledge in writing that it is a fiduciary (as defined in ERISA Section 3(21))
with respect to the Plan. The Company or the Administrative Committee shall
enter into an agreement with each Investment Manager specifying the duties and
compensation of such Administrative Manager and the other terms and conditions
under which such Investment Manager shall be retained. Neither the Trustee nor
the Administrative Committee shall be liable for any act or omission of any
Investment Manager and shall not be liable for following the advice of any
Investment Manager with respect to any duties delegated to any Investment
Manager.


 


12.4.3      The Administrative Committee
shall have the power to determine the Trust assets to be invested pursuant to
the direction of a designated Investment Manager and to set investment
objectives and guidelines for the Investment Manager.


 


12.5         Compensation


 


Each insurance company, Investment Manager and Trustee shall be paid
such reasonable compensation, in addition to their expenses, as shall from time
to time be agreed to by the Company or other person making such appointment;
provided, however, that no such compensation shall be paid to any person who is
an Employee.


 


44
















 


ARTICLE XIII


 


PLAN AMENDMENT OR TERMINATION


 


13.1         Plan Amendment


 


The Company shall have the right at any time to amend the Plan, by an
instrument in writing, effective retroactively or otherwise, provided that no
such amendment shall have any of the effects specified in Section 1.3.2.


 


13.2         Limitations of Plan
Amendment


 


No Plan amendment shall:


 


(a)           authorize
any part of the Trust to be used for, or diverted to, purposes other than for
the exclusive benefit of Participants or their Beneficiaries;


 


(b)           decrease
the Account Balance of any Participant or his or her Beneficiary under the Plan
except to the extent permitted under Code Section 412(c)(8);


 


(c)           reduce
the vested percentage of any Participant;


 


(d)           eliminate
an optional form of benefit except to the extent permitted by Code Section 411
(d)(6); or


 


(e)           change
the vesting schedule, either directly or indirectly, unless each Participant
having not less than three years of Vesting Service is permitted to elect,
within a reasonable period specified by the Administrative Committee after the
adoption of such amendment, to have his or her vested percentage computed
without regard to such amendment. The period during which the election may be
made shall commence with the date the amendment is adopted and shall end as the
later of:


 


(i)            sixty days after the
amendment is adopted;


 


(ii)           sixty days after the
amendment is becomes effective; or


 


(iii)          sixty days after the
Participant is issued written notice by the Administrative Committee.


 


13.3         Right of the Company
to Terminate Plan


 


The Company intends and expects that from year to year it will be able
to and will deem it advisable to continue this Plan in effect and to make
contributions as herein provided. The Company reserves the right, however, to
terminate the Plan at any time.


 


45

















 


13.4         Effect of Partial or
Complete Termination


 


13.4.1      As of the date of a “partial
termination” of the Plan or a complete discontinuance of contributions under
the Plan, each affected Participant who is then an Employee shall become 100%
vested in his or her Account Balance.


 


13.4.2      As of the date of a “complete
termination” of the Plan, each affected Participant who is then an Employee
shall become 100% vested in his or her Account balance, and distributions shall
be made as soon as practicable thereafter, as determined by the Administrative
Committee, in accordance with Article VII.


 


46

















 


ARTICLE XIV


 


MISCELLANEOUS PROVISIONS


 


14.1         Plan Not a Contract of
Employment


 


The Plan is not a contract of Employment, and the terms of Employment
of any Employee shall not be affected in any way by the Plan or related
instruments except as specifically provided therein.


 


14.2         Source of Benefits


 


Benefits under the Plan shall be paid or provided for solely from the
Trust, and neither the Employer, the Administrative Committee, Trustee,
Investment Manager or insurance company shall assume any liability therefor.


 


14.3         Benefits Not
Assignable


 


Except as permitted in Code Section 401(a)(13) and ERISA Section 206(d),
benefits provided under the Plan may not be assigned or alienated, either
voluntarily or involuntarily. The preceding sentence shall not apply to the
creation, assignment or recognition of a right to any benefit payable with
respect to a Participant pursuant to a domestic relations order which the
Administrative Committee determines to be a “qualified domestic relations order”
(as defined in Code Section 414(p)).


 


14.4         Domestic Relations Orders


 


Any other provision of the Plan to the contrary notwithstanding, the
Administrative Committee shall have all powers necessary with respect to the
Plan for the proper operation of Code Section 414(p) with respect to
qualified domestic relations orders referred to in Section 14.3,
including, but not limited to, the power to establish all necessary or
appropriate procedures, to authorize the establishment of new accounts with
such assets and, subject to such investment control by the Administrative
Committee as the Administrative Committee may deem appropriate, and the
Administrative Committee may decide upon and make direct appropriate
distributions therefrom. To the extent provided in a qualified domestic
relations order, within the meaning of Code Section 414(p), distribution
of any portion of a Participant’s vested Account Balance allocated to an
alternate payee may be made whether or not the Participant has terminated
Employment or is otherwise eligible to receive a distribution.


 


14.5         Benefits Payable to
Minors, Incompetents and Others


 


In the event any benefit is payable to a minor or to a person otherwise
under a legal disability, or who, in the sole discretion of the Administrative
Committee, is by reason of advanced age, illness or other physical or mental
incapacity incapable of handling and disposing of his or her property, or
otherwise is in such position or condition that the Administrative Committee
believes that he or she could not utilize the benefit for his or her support or
welfare, the Administrative Committee shall have discretion to apply the whole
or any part of such benefit directly to the care, comfort, maintenance,
support, education or use of such person, or to 


 


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pay the whole or any part of
such benefit to the parent of such person; to the guardian, committee,
conservator or other legal representative, wherever appointed, of such person;
to the person with whom such person is residing; or to any other person having
the care and control of such person.  The
receipt by any such person to whom any such payment on behalf of any
Participant or Beneficiary is made shall be a sufficient discharge therefor.


 


14.6         Merger or Transfer of
Assets


 


14.6.1      Subject to Section 14.6.2,
the Company may direct that the Plan be merged or consolidated with, or may
transfer all or a portion of its assets and liabilities to, another plan or may
receive assets and liabilities from another plan. The Administrative Committee
may take whatever action it deems necessary or appropriate to effect any such
merger, consolidation or transfer. Any optional forms of benefit or other
special provisions applicable to a Participant for whom an account balance has
been transferred to this Plan from another plan shall be set forth in an
Appendix hereto.


 


14.6.2      The Plan may not merge or
consolidate with, or transfer any assets or liabilities to, any other plan,
unless each Participant would (if the Plan then terminated) receive a benefit
immediately after the merger, consolidation or transfer which is equal to or
greater than the benefit he or she would have been entitled to receive
immediately before the merger, consolidation or transfer (if the Plan had then
terminated).


 


14.7         Participation in the
Plan by an Affiliate


 


14.7.1      With the consent of the
Company and by duly authorized action, an Affiliate may adopt the Plan.
Participating Affiliate contributions shall be allocated solely to Eligible
Employees of the Participating Affiliate. Company contributions shall be
allocated solely to Eligible Employees of the Company.


 


14.7.2      With the consent of the
Company and by duly authorized action, any other Employer may terminate its
participation in the Plan or withdraw from the Plan and the Trust.


 


14.7.3      A Participating Affiliate shall
have no independent power with respect to the Plan except as specifically
provided by this Section 14.7.


 


14.8         Action by the Company
or a Participating Affiliate


 


Any action required to be taken by the Company or any Participating
Affiliate pursuant to the terms of the Plan shall be taken by its board of
directors or any person or persons duly empowered to act on its behalf.


 


14.9         Provision of
Information


 


For purposes of the Plan, each
Employee shall execute such forms as may be reasonably required by the
Administrative Committee, and the Employee shall make available to the
Administrative Committee and the Trustee any information they may reasonably
request in this regard.


 


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14.10       Notice of Address


 


Each person entitled to benefits under this Plan must file with the
Administrative Committee, in writing, his or her post office address and each
subsequent change of post office address. Any communication, statement or
notice addressed to such person at his or her latest reported post office
address will be binding on him or her for all purposes under the Plan.


 


14.11       Controlling Law


 


The Plan is intended to qualify under Code Section 401(a) and
to comply with ERISA, and its terms shall be interpreted accordingly.
Otherwise, to the extent not preempted by ERISA, the laws of the State of New
York shall control the interpretation and performance of the terms of the Plan.


 


14.12       Military Service


 


Notwithstanding any provision of this Plan to the contrary, contributions,
benefits, and service credit with respect to qualified military service will be
provided in accordance with Code Section 414(u).


 


14.13       Conditional Adoption


 


Anything in the foregoing to the contrary notwithstanding, the Plan has
been adopted on the express condition that the Plan will be considered by the
Internal Revenue Service as qualifying under the provisions of Code Section 401(a),
and the Trust will be considered as qualifying for exemption from taxation
under Code Section 501(a). If the Internal Revenue Service determines that
the Plan or Trust does not so qualify, the Plan shall be amended or terminated
as decided by the Company.


 


14.14       Word Usage and Article and
Section References


 


As used in the Plan, the masculine includes the feminine, the singular
includes the plural, and the plural includes the singular, unless qualified by
the context. Titles of Articles and Sections of the Plan are for convenience of
reference only and are to be disregarded in applying the provisions of the
Plan.


 


14.15       Effect of Mistake


 


In the event of a mistake or misstatement as to the age, eligibility,
participation of an Eligible Employee, Vesting Service, the amount of
contributions made by or on behalf of a Participant or the amount of
distributions made or to be made to a Participant or Beneficiary, the
Administrative Committee shall, to the extent it deems it possible, make the
necessary adjustments (including, but not limited to, recoupment, reduction in
benefit payments, offset of benefit payments or return of overpayments) to
grant to such Participant or Beneficiary the credits or distributions to which
he is properly entitled under the Plan.


 


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IN WITNESS WHEREOF, this Plan is hereby adopted, effective as of January 1,
2008 to be signed this
            day of
                                   ,
2008.


 


	
   

  	
  ROCKWOOD SPECIALTIES INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  



 


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