exhibit44






BGC PARTNERS, INC. DEFERRAL PLAN FOR  EMPLOYEES OF BGC PARTNERS, INC., CANTOR FITZGERALD, L.P. AND THEIR  AFFILIATES  (As Amended and Restated Effective as of November 3, 2020)  Exhibit 4.4 





 






-i-  BGC PARTNERS, INC. DEFERRAL PLAN FOR  EMPLOYEES OF BGC PARTNERS, INC., CANTOR FITZGERALD, L.P. AND THEIR   AFFILIATES  TABLE OF CONTENTS  Page  ARTICLE I DEFINITIONS .......................................................................................................... 1  1.1 Account ................................................................................................................... 1  1.2 Account Balance ..................................................................................................... 1  1.3 Affiliate ................................................................................................................... 1  1.4 After-Tax Contributions.......................................................................................... 2  1.5 After-Tax Election .................................................................................................. 2  1.6 Annual Additions .................................................................................................... 2  1.7 Basic Contributions ................................................................................................. 2  1.8 Beneficiary .............................................................................................................. 2  1.9 Benefit Commencement Date ................................................................................. 2  1.10 Catch-Up Contributions .......................................................................................... 2  1.11 Code ........................................................................................................................ 2  1.12 Collective Bargaining Agreement........................................................................... 2  1.13 Collective Bargaining Unit ..................................................................................... 3  1.14 Committee. .............................................................................................................. 3  1.15 Company ................................................................................................................. 3  1.16 Compensation ......................................................................................................... 3  1.17 Coronavirus-Affected Participant. .......................................................................... 3  1.18 Disability ................................................................................................................. 4  1.19 Earned Income ........................................................................................................ 4  1.20 Eligible Employee ................................................................................................... 4  1.21 Employee ................................................................................................................ 4  1.22 Employer ................................................................................................................. 5  1.23 Employment ............................................................................................................ 5  1.24 Entry Date ............................................................................................................... 5  1.25 ERISA ..................................................................................................................... 5  1.26 Highly Compensated Employee or HCE ................................................................ 5  1.27 Hours of Service ..................................................................................................... 6  





 






-ii-  1.28 Investment Fund...................................................................................................... 6  1.29 Investment Manager................................................................................................ 6  1.30 Limitation Year ....................................................................................................... 6  1.31 Matching Contributions .......................................................................................... 7  1.32 Non-Highly Compensated Employee or NHCE ..................................................... 7  1.33 Normal Retirement Date and Normal Retirement Age........................................... 7  1.34 Owner-Employee .................................................................................................... 7  1.35 Participant ............................................................................................................... 7  1.36 Participating Employer ........................................................................................... 7  1.37 Period of Service ..................................................................................................... 7  1.38 Period of Severance ................................................................................................ 7  1.39 Plan ......................................................................................................................... 8  1.40 Plan Year ................................................................................................................. 8  1.41 Pre-Tax Deferral ..................................................................................................... 8  1.42 Qualified Nonelective Contributions ...................................................................... 8  1.43 Rollover Contribution ............................................................................................. 8  1.44 Roth Contributions .................................................................................................. 8  1.45 Salary Reduction Contributions .............................................................................. 8  1.46 Salary Reduction Election....................................................................................... 8  1.47 Section 415 Compensation ..................................................................................... 9  1.48 Self-Employed Individual ....................................................................................... 9  1.49 Spouse ..................................................................................................................... 9  1.50 Surviving Spouse .................................................................................................... 9  1.51 Trust ........................................................................................................................ 9  1.52 Trust Fund ............................................................................................................... 9  1.53 Trustee..................................................................................................................... 9  1.54 Valuation Date ........................................................................................................ 9  1.55 Year of Service ....................................................................................................... 9  ARTICLE II PARTICIPATION ................................................................................................. 10  2.1 Admission as a Participant .................................................................................... 10  2.2 Provision of Information ....................................................................................... 10  2.3 Termination of Participation ................................................................................. 10  2.4 Rollover Membership ........................................................................................... 10  





 






-iii-  2.5 Special Rules Relating to Veterans Reemployment Rights Under  USERRA ............................................................................................................... 10  ARTICLE III ACCOUNTS, CONTRIBUTIONS AND ALLOCATIONS ............................... 12  3.1 Participant Accounts ............................................................................................. 12  3.2 Employer Contributions ........................................................................................ 13  3.3 Participant Salary Reduction Contributions.......................................................... 13  3.4 Roth Contributions ................................................................................................ 14  3.5 After-Tax Contributions........................................................................................ 15  3.6 Rollover Contributions.......................................................................................... 15  3.7 Allocations to Salary Reduction Accounts ........................................................... 16  3.8 Allocations to Rollover Accounts and Matching Contributions Accounts ........... 16  3.9 Limitations on Salary Reduction Contributions ................................................... 16  3.10 Maximum Amount of Salary Reduction Contributions ........................................ 16  3.11 Excess Elective Contributions .............................................................................. 17  3.12 Actual Deferral Percentage Test ........................................................................... 17  3.13 Excess Contributions ............................................................................................ 19  3.14 Limitations on After-Tax Contributions and Matching Contributions ................. 20  3.15 ACP Test ............................................................................................................... 20  3.16 Excess Aggregate Contributions ........................................................................... 21  3.17 Defined Contribution Limitation .......................................................................... 21  3.18 Catch-up Contributions for Individuals Age 50 or Over ...................................... 22  ARTICLE IV MAXIMUM CONTRIBUTIONS AND BENEFITS ........................................... 23  4.1 Determination of Vesting ...................................................................................... 23  4.2 Vesting for Matching Contribution Account ........................................................ 23  4.3 Years of Service for Vesting ................................................................................. 23  4.4 Allocation of Forfeitures ....................................................................................... 24  ARTICLE V BENEFITS FOR PARTICIPANTS ....................................................................... 24  5.1 Retirement Benefit ................................................................................................ 24  5.2 Death Benefit ........................................................................................................ 24  5.3 Termination of Employment Benefit .................................................................... 25  ARTICLE VI AMOUNT AND PAYMENT OF BENEFITS TO PARTICIPANTS ................. 25  6.1 Separation from Employment ............................................................................... 25  6.2 Benefit Commencement Date ............................................................................... 25  6.3 Forms of Payment ................................................................................................. 27  





 






-iv-  6.4 Consent of Spouse................................................................................................. 27  6.5 Direct Rollover of Eligible Rollover Distributions ............................................... 27  ARTICLE VII LOANS AND WITHDRAWALS ...................................................................... 28  7.1 Withdrawals .......................................................................................................... 28  7.2 Hardship Withdrawals .......................................................................................... 28  7.3 Loans ..................................................................................................................... 30  7.4 Additional Distribution Events ............................................................................. 32  7.5 Disaster Relief ....................................................................................................... 32  7.6 Coronavirus-Related Distribution ......................................................................... 33  7.7 Qualified Birth or Adoption Distributions ............................................................ 34  ARTICLE VIII DEATH BENEFITS.......................................................................................... 35  8.1 Payment of Account Balances .............................................................................. 35  8.2 Beneficiaries ......................................................................................................... 35  8.3 Qualified Election ................................................................................................. 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 PLAN ADMINISTRATION ................................................................................. 37  10.1 The Committee...................................................................................................... 37  10.2 Powers and Duties of the Committee .................................................................... 37  10.3 Investment of Accounts ........................................................................................ 38  10.4 Individual Investment Funds................................................................................. 39  10.5 Valuation of Accounts .......................................................................................... 40  10.6 Compensation ....................................................................................................... 40  10.7 Delegation of Responsibility................................................................................. 40  10.8 Investment Manager.............................................................................................. 40  ARTICLE XI APPOINTMENT OF TRUSTEE ......................................................................... 41  11.1 Trustee................................................................................................................... 41  ARTICLE XII PLAN AMENDMENT OR TERMINATION ................................................... 41  12.1 Plan Amendment or Termination.......................................................................... 41  12.2 Limitations on Plan Amendment .......................................................................... 41  





 






-v-  12.3 Right of the Company to Terminate Plan or Discontinue Contributions .............. 42  12.4 Effect of Partial or Complete Termination or Complete Discontinuance of  Contributions......................................................................................................... 42  12.5 Bankruptcy ............................................................................................................ 42  ARTICLE XIII TOP-HEAVY PROVISIONS ........................................................................... 43  13.1 Top-Heavy Plan .................................................................................................... 43  13.2 Top-Heavy Determination .................................................................................... 43  13.3 Calculation of Top-Heavy Ratios ......................................................................... 43  13.4 Cumulative Accounts ............................................................................................ 43  13.5 Additional Definitions .......................................................................................... 44  13.6 Discontinuance of Article ..................................................................................... 45  ARTICLE XIV MISCELLANEOUS PROVISIONS ................................................................. 45  14.1 Exclusive Benefit of Participants .......................................................................... 45  14.2 Plan Not a Contract of Employment ..................................................................... 46  14.3 Source of Benefits ................................................................................................. 46  14.4 Benefits Not Assignable ....................................................................................... 46  14.5 Claims Procedure .................................................................................................. 46  14.6 Income Tax Withholding ...................................................................................... 49  14.7 Benefits Payable to Minors, Incompetents and Others ......................................... 49  14.8 Merger or Transfer of Assets ................................................................................ 50  14.9 Missing Participants / Uncashed Checks .............................................................. 50  14.10 Participation in the Plan by an Affiliate ................................................................ 51  14.11 Gender and Number .............................................................................................. 51  14.12 Headings ............................................................................................................... 52  14.13 Controlling Law .................................................................................................... 52  14.14 Conditional Adoption............................................................................................ 52  ARTICLE XV MULTIPLE EMPLOYER PROVISIONS .......................................................... 52  15.1 Application. ........................................................................................................... 52  15.2 Adoption of the Plan ............................................................................................. 52  15.3 Service................................................................................................................... 52  15.4 Plan Contributions ................................................................................................ 53  15.5 Transferring Employees ........................................................................................ 53  15.6 Certain Qualification Rules. .................................................................................. 53  15.7 Delegation of Authority ........................................................................................ 53  





 






-vi-  15.8 Termination ........................................................................................................... 53  APPENDIX A NEWMARK PLAN PARTICIPANTS ................................................................ 55  APPENDIX B NEWMARK CORPORATE SPIN-OFF AND TRANSFER OF ASSETS TO  THE NEW NEWMARK PLAN ................................................................................................... 58      





 






-vii-  BGC PARTNERS, INC. DEFERRAL PLAN FOR  EMPLOYEES OF BGC PARTNERS, INC., CANTOR FITZGERALD, L.P. AND THEIR  AFFILIATES  (Amended and Restated Effective as of November 3, 2020)  BACKGROUND  Cantor Fitzgerald, L.P., a Delaware limited partnership (the “Company”), and BGC  Partners, Inc., a Delaware corporation (“BGC”), maintain and co-sponsor the BGC Partners, Inc.  Deferral Plan for Employees of BGC Partners, Inc., Cantor Fitzgerald, L.P., and their Affiliates  (previously the eSpeed, Inc. Deferral Plan for Employees of Cantor Fitzgerald, L.P. and its  Affiliates) (the “Plan”) to provide benefits to the Company’s Employees and the Employees of  Affiliates that adopt the Plan in recognition of their contributions to the successful operation of the  Company and such adopting Affiliates.  Effective as of November 3, 2020, the Company hereby amends and restates the  Plan as provided herein. BGC consents to this amendment and restatement.  The Company intends  that the Plan as amended and restated meet all applicable requirements of Code Section 401(a) and  that the Trust maintained with respect thereto be tax exempt under Code Section 501(a).  





 






-1-  ARTICLE I    DEFINITIONS  The following terms shall have the following meanings for purposes of this Plan  and any amendments thereto:  1.1 Account. On any date of determination, the value of a Participant’s share of the  Trust Fund, and consisting of the following subaccounts, which may be further divided into  additional subaccounts as determined necessary by the Committee:  (a) Salary Reduction Account: The portion of the Participant’s Account derived  from Basic Contributions under Section 3.3 and Catch-up Contributions under Section  3.18, and any earnings or losses thereon.  (b) Roth Contribution Account: The portion of the Participant’s Account  derived from Roth Contributions under Section 3.4 and any earnings or losses thereon.  (c) After-Tax Account: The portion of the Participant’s Account derived from  After-Tax Contributions, and any earnings or losses thereon.  (d) Rollover Account: The portion of the Participant’s Account derived from  amounts transferred to the Trust Fund under Section 3.6, and any earnings or losses  thereon.  (e) Matching Contributions Account: The portion of the Participant’s Account  derived from Matching Contributions.  1.2 Account Balance. The value of an Account determined as of any Valuation  Date.  1.3 Affiliate. Any corporation, partnership or other entity (other than the Company)  that is:  (a) a member of a “controlled group of corporations” (as Code Section 414(b)  defines that term) of which the Company is a member;  (b) a member of any trade or business under “common control” (as Code  Section 414(c) defines that term) with the Company;  (c) a member of an “affiliated service group” (as Code Section 414(m) defines  that term) that includes the Company;  (d) a “leasing organization” that “leases” (as Code Section 414(n) defines those  terms) its employees to the Company and that otherwise satisfies the requirements of Code  Sections 414(n)(l) through (4) and that employees who are so leased to the Company are  not covered by a retirement plan described in Code Section 414(n)(5) and/or if covered by  





 






-2-  a retirement plan described in Code Section 414(n)(5), constitute more than twenty percent  (20%) of the Company’s non-highly compensated workforce within the meaning of Code  Section 414(n)(5)(C)(ii); or  (e) an entity required to be aggregated with the Company pursuant to Code  Section 414(o) and the Treasury Regulations issued thereunder.  1.4 After-Tax Contributions. Any contribution a Participant elects to have  contributed to the Plan on an after-tax basis under Sections 3.5 of the Plan.  1.5 After-Tax Election. The election by a Participant to have part of his Compensation  be contributed to the Plan as an After-Tax Contribution in accordance with Section 3.5.  1.6 Annual Additions. The sum for any Limitation Year of (i) employer contributions,  (ii) employee contributions, (iii) forfeitures and (iv) amounts described in Code Sections 415(l)(1)  and 419A(d)(2), which are allocated to the account of a Participant under the terms of a plan subject  to Code Section 415. “Annual Additions” shall include excess contributions as defined in Code  Section 401(k)(8)(B), excess aggregate contributions as defined in Code Section 401(m)(6)(B) and  excess deferrals as described in Code Section 402(g), regardless of whether such amounts are  distributed or forfeited. “Annual Additions” shall not include contributions made under Section  3.6.  1.7 Basic Contributions. Any contribution made on behalf of a Participant pursuant  to Section 3.3 of the Plan that is not includible in the Participant’s gross income at the time  deferred.  1.8 Beneficiary. Any individual, trust, estate, or charitable organization designated or  deemed designated by a Participant to receive any payment of Plan benefits due after the  Participant’s death. A “Primary Beneficiary” means an individual who is named as a Beneficiary  hereunder and has an unconditional right to all or a portion of the Participant’s Account Balance  under the Plan.  1.9 Benefit Commencement Date. The first day on which all events have occurred  that entitle a Participant or a Beneficiary to receive payment of his or her benefit under the Plan.  1.10 Catch-Up Contributions. Any contribution made on behalf of a Participant  pursuant to Section 3.18 of the Plan that is not includible in the Participant’s gross income at the  time deferred.  1.11 Code. The Internal Revenue Code of 1986, as amended from time to time.  Reference to a specific provision of the Code shall include such provision and any valid regulation  promulgated thereunder.  1.12 Collective Bargaining Agreement. A collective bargaining agreement between an  Employer and employee representatives, provided retirement benefits were the subject of good  faith bargaining. For this purpose, the term “employee representatives” does not include any  organization more than half of whose members are Employees who are owners, officers or  executives of an Employer  





 






-3-  1.13 Collective Bargaining Unit. A unit of Employees recognized by an Employer for  purposes of negotiating a Collective Bargaining Agreement between the Employer and a  recognized employee representative. For purposes of the Plan, a Collective Bargaining Unit shall  not exist until the effective date of the first Collective Bargaining Agreement reached through good  faith bargaining  1.14 Committee. The individual or individuals appointed pursuant to, and having the  responsibilities specified in, Sections 10.1 and 10.2 of the Plan.   1.15 Company. Cantor Fitzgerald, L.P. and any successor thereto.  1.16 Compensation. Section 415 Compensation, exclusive of amounts contributed to or  the value of benefits under any other deferred compensation, employee benefit or fringe benefit  program or plan or any other extraneous form of compensation. For a Participant’s initial year of  participation, the Plan shall recognize Compensation paid to the Participant by an Employer during  the entire Plan Year. The determination of Compensation shall be in accordance with records  maintained by the Employer and shall be conclusive.  1.17 Coronavirus-Affected Participant. Pursuant to the Coronavirus Aid, Relief, and  Economic Security Act (the “CARES Act”) and any applicable guidance published in the Internal  Revenue Bulletin, including but not limited to Internal Revenue Service (“IRS”) Notice 2020–50,  a “Coronavirus-Affected Participant” shall mean a Participant who certifies to the Committee that  he or she has:   (a)  Been diagnosed, or whose Spouse or dependent (as defined in Code Section  152) is diagnosed, with the virus SARS-CoV-2 or with coronavirus disease 2019  (collectively, “COVID-19”) by a test approved by the Centers for Disease Control and  Prevention (including a test authorized under the Federal Food, Drug, and Cosmetic Act);  or  (b) Experienced adverse financial consequences as a result of the Participant,  the Participant’s Spouse, or an individual who shares the Participant’s principal residence:   (1) Being quarantined, being furloughed or laid off, or having work  hours reduced due to COVID-19;   (2) Being unable to work due to lack of child care due to COVID-19;  (3) Closing or reducing hours of a business owned or operated by the  Participant, the Participant’s Spouse, or an individual who shares the Participant’s  principal residence due to COVID-19;   (4) Having a reduction in pay (or self-employment income) due to  COVID-19; or   (5) Having a job offer rescinded or start date for a job delayed due to  COVID-19.  





 






-4-  1.18 Disability. A condition that renders a Participant eligible for Social Security  disability benefits or a condition by which a Participant is deemed to be disabled for purposes of  the Employer’s long-term disability plan in effect at the time of Participant’s termination of  Employment.  1.19 Earned Income. The net earnings from self-employment in the trade or business  with respect to which the Plan is established, and for which the personal services of the individual  are a material income-producing factor. Net earnings will be determined without regard to items  not included in gross income and the deductions allocable to such items. Net earnings are reduced  by contributions to a qualified plan to the extent deductible under Code Section 404. Net earnings  shall be determined with regard to the deduction allowed to the employer by Code Section 164(f).  Contributions to the Plan on behalf of an Owner-Employee may be made only with respect to the  Earned Income of such Owner-Employee which is derived from the trade or business with respect  to which the Plan is established.  1.20 Eligible Employee. Any Employee of an Employer, including any Self- Employed  Individual who is considered a partner of an Employer, other than (i) a nonresident alien who  receives no earned income from an Employer that constitutes income from sources within the  United States; (ii) an employee who is a member of a Collective Bargaining Unit, unless the  Collective Bargaining Agreement specifically provides for participation in the Plan; (iii) a  temporary employee, who for purposes of the Plan is any Employee who works on a customary  work schedule of up to eight hours per day, for up to five days per week (40 hours) with definite  limits set upon the duration of his or her employment; and (iv) a casual employee, who for purposes  of the Plan is any Employee who is called into work on occasion (most likely the duration of his  or her work is one day to one week), to be performed on the basis of a customary work schedule  of eight hours or less. Notwithstanding the foregoing, a temporary or casual employee shall be an  Eligible Employee if he or she completes 1,000 hours of service, as determined under Department  of Labor Regulation Section 2530.200b-2, during the 12-month period beginning on his first date  of hire or any Plan Year thereafter.  1.21 Employee. Any person who is engaged in rendering personal services under the  direction or control of an Employer, including Self-Employed Individuals who are considered  partners of an Employer.  No person whom the Employer classifies as a “leased employee” or an independent  contractor shall be eligible to participate in this Plan, regardless of any later or retroactive  reclassification of the individual’s employment status. Self-Employed Individuals who are  considered partners of an Employer shall not be treated as independent contractors for purposes of  the Plan. A “leased employee” shall mean any person who is not an Employee but who provides  services to an Employer if:  (a) such person provides the services pursuant to an agreement between the  Employer and any leasing organization;  (b) such person has performed services for the Employer (or for the Employer  and any related person within the meaning of Code Section 414(n)(6)) on a substantially  full-time basis for a period of at least one (1) year; and  





 






-5-  (c) the person performs such services under the primary direction or control of  the Employer.  Except as provided below, the Plan shall treat a “leased employee” as an employee  of an Employer only for nondiscrimination testing and other purposes specified in Code Section  414(n). However, contributions or benefits provided by the leasing organization, which are  attributable to services performed for the Employer, shall be treated as provided by the Employer.  The Plan shall not treat a “leased employee” as an employee if such “leased employee” is covered  by a money purchase pension plan of the leasing organization, and the number of leased employees  does not constitute more than twenty percent (20%) of the Employer’s “non-highly compensated  work force” as defined by Code Section 414(n)(5)(C). The money purchase pension plan of the  leasing organization must provide benefits equal to or greater than: (i) a non-integrated employer  contribution rate of at least ten percent (10%) of compensation, (ii) immediate participation, and  (iii) full and immediate vesting.  1.22 Employer. The Company and each Affiliate that adopts, and has not terminated  participation or withdrawn from, the Plan in accordance with Section 14.10.  1.23 Employment. An Employee’s employment with an Employer.  1.24 Entry Date. The first day of the calendar month coincident with or next following  the date the Eligible Employee meets the requirements of Section 2.1.  1.25 ERISA. 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 and any  valid regulation promulgated thereunder.  1.26 Highly Compensated Employee or HCE. An individual described in Code  Section 414(q) including both Highly Compensated active Employees and Highly Compensated  former Employees. A Highly Compensated active Employee is an Employee who performs  services for the Company or an Affiliate and who was a five percent (5%) owner as defined in  Code Section 416(i)(l) at any time during the Plan Year or the preceding Plan Year or who received  Section 415 Compensation in excess of $125,000 (as indexed) in the preceding Plan Year and was  a member of the top-paid group consisting of the top twenty percent (20%) of Employees when  ranked on the basis of Section 415 Compensation paid for such preceding year.  A Highly Compensated former Employee includes any Employee who separated  from service (or was deemed to have separated) before the determination year, performs no service  for the Company or an Affiliate during the determination year, and was a Highly Compensated  active Employee for either the determination year during which he or she separated from service  (or was deemed to have separated) or any determination year ending on or after the Employee’s  55th birthday.  The determination of who is a Highly Compensated Employee, including the  determination of the number and identity of the Employees in the top-paid group, and the  compensation that is considered, will be made in accordance with Treasury Regulation Section  1.414(q)-1T.  





 






-6-  1.27 Hours of Service.  (a) Each hour for which an Employee is directly or indirectly paid or entitled  to payment by an Employer for the performance of duties;  (b) Each hour for which an Employee is directly or indirectly paid, or entitled  to payment, by an Employer for reasons (such as vacation, sickness, disability, or similar  leave of absence) other than for the performance of duties, and for military leaves,  maternity/paternity leaves or leaves for jury duty; and  (c) Each hour for which back pay, irrespective of mitigation of damages, has  been either awarded or agreed to by an Employer provided that the same Hours of Service  shall not be credited under this Section (c) and Sections (a) or (b) above, as the case may  be.  (d) An Employee shall also be credited with one Hour of Service for each hour  that would normally have been credited to the Employee but during which such Employee  is absent from work for any period (i) by reason of the Employee’s pregnancy, (ii) by  reason of the birth of the Employee’s child, (iii) by reason of the placement of a child with  such Employee in connection with an adoption of such child by the Employee or (iv) for  purposes of caring for a child for a period beginning immediately following birth or  placement, provided that an Employee shall be credited with no more than 501 Hours of  Service on account of any single continuous period of absence by reason of any such  pregnancy, birth or placement and provided further that Hours of Service credited to an  individual on account of such a period of absence shall be credited only for the Plan Year  in which such absence begins if an Employee would otherwise fail to be credited with 501  or more Hours of Service in such Plan Year or, in any other case, in the immediately  following Plan Year.  Hours of Service computed hereunder shall be computed in accordance with  Department of Labor Regulation Sections 2530.200b-2 (b) and (c), which are incorporated herein  by reference. In no event shall more than 501 Hours of Service be credited for any one continuous  period of absence during or for which the employee receives payment for nonperformance of duties  whether or not such period occurs in a single computation period.  1.28 Investment Fund. An investment fund established or selected by the Company or  the Committee pursuant to Section 10.3. The Investment Funds will include both regular  investments made by the Committee on behalf of Participants who have not directed investments  pursuant to Section 10.3 as well as investments made by the Trustee in accordance with  Participants’ investment instructions.  1.29 Investment Manager. Any person appointed by the Committee to serve as an  investment manager in accordance with Section 10.8 of the Plan.  1.30 Limitation Year. The consecutive twelve-month period commencing on each  January 1 and ending on the next following December 31.  





 






-7-  1.31 Matching Contributions. Matching contributions made (i) pursuant to Section  3.19 or (ii) pursuant to the terms of the Plan as in effect for Plan Years prior to 2007.  1.32 Non-Highly Compensated Employee or NHCE. An Employee who is not a  Highly Compensated Employee.  1.33 Normal Retirement Date and Normal Retirement Age. The first day of the  month coincident with or immediately following a Participant’s attainment of Normal Retirement  Age. A Participant’s Normal Retirement Age will be the later of the date on which a Participant  attains age fifty-nine and one-half (59-1/2) years or completes five Years of Service.  1.34 Owner-Employee. An “owner-employee” within the meaning of Section  401(c)(3).  1.35 Participant. An Eligible Employee who has commenced, but not terminated,  participation in the Plan pursuant to the provisions of Article II of the Plan.  1.36 Participating Employer. A corporation or other entity that (a) is not an Affiliate,  (b) has adopted this Plan for its employees in accordance with Section 15.1, and (c) has not  terminated its participation or withdrawn from the Plan in accordance with Section 15.6.  1.37 Period of Service. The period beginning on the date the Employee first performs  an Hour of Service and ending on the date a Period of Severance begins. Notwithstanding the  foregoing, if an Employee quits, retires or is discharged, such Employee’s Period of Service shall  include the period commencing on the date the Employee terminates Employment and ending on  the first date on which the Employee again performs an Hour of Service, if such date is within 12  months of the date on which the Employee last performed an Hour of Service. If the Employee is  absent from work for any other reason and, within 12 months of the first day of such absence, the  Employee quits, retires or is discharged, the period commencing on the first day of such absence  and ending on the first day the Employee again performs an Hour of Service if such date is within  12 months of the date his or her absence began, shall be included in the Period of Service.  1.38 Period of Severance. A period equal to the number of consecutive Plan Years in  which an Employee is credited with less than 501 Hours of Service in each such year. The Period  of Severance shall commence at the end of the first Plan Year in which the Employee has less than  501 Hours of Service. For purposes of calculating a Period of Service, a Period of Severance means  the period commencing on the earliest of the date an Employee quits, retires, is discharged or dies,  or the first anniversary of the date that an Employee is absent from work (with or without pay) for  any other reason, and ending on the date the Employee completes an Hour of Service.  Anything contained herein to the contrary notwithstanding, a Period of Severance  shall not commence if the Participant is:  (a) on a leave of absence in excess of twelve (12) months authorized by an  Employer in accordance with standard personnel policies applied in a nondiscriminatory  manner to all Employees similarly situated and returns to active Employment for an  Employer immediately upon the expiration of such leave of absence;  





 






-8-  (b) on military leave in excess of twelve (12) months while such Employee’s  reemployment rights are protected by law and returns to active Employment with an  Employer within 90 days after his or her discharge or release (or such longer period as may  be prescribed by law); or  (c) on layoff in excess of twelve (12) months and returns to work within such  period of time and in such a manner as to maintain seniority according to the rules of the  Employer in effect on the date of return.  1.39 Plan. The BGC Partners, Inc. Deferral Plan for Employees of BGC Partners, Inc.,  Cantor Fitzgerald, L.P. and their Affiliates (previously the eSpeed, Inc. Deferral Plan for  Employees of Cantor Fitzgerald, L.P. and its Affiliates), as amended from time to time.  1.40 Plan Year. Each twelve (12) consecutive month period beginning on January 1 and  ending on the next following December 31.  1.41 Pre-Tax Deferral. Any Basic Contribution or Catch-Up Contribution made on  behalf of a Participant under Sections 3.3 and 3.18, respectively, that is not includible in the  Participant’s gross income at the time deferred.  1.42 Qualified Nonelective Contributions. Company contributions described m  Section 3.2(b).  1.43 Rollover Contribution. An amount received from a deferred compensation plan  that qualifies under Code Section 401(a), 403(a), 403(b) or 457(b), and that a Participant rolls over  to the Plan pursuant to Code Section 402(c). A Rollover Contribution can include both Direct  Rollovers and amounts distributed to a Participant and then rolled over. In addition, if an Employee  had deposited a “qualified total distribution” within the meaning of Code Section 402(a)(5)(E) (as  in effect prior to January 1, 1993) or an Eligible Rollover Distribution into an individual retirement  account as defined in Code Section 408, the Employee may transfer the amount of the distribution  plus earnings from the individual retirement account to the Plan provided, however, that the  rollover amount is deposited with the Trustee within sixty (60) days after receipt from the  individual retirement account. Notwithstanding any provision of the Plan to the contrary, an  Eligible Rollover Distribution recontributed to the Plan in accordance with Section 7.6 or 7.7 will  be treated as a Rollover Contribution for all Plan purposes.   1.44 Roth Contributions. Any contribution made on behalf of a Participant pursuant to  Section 3.4 of the Plan that is includible in the Participant’s gross income at the time deferred and  that have been irrevocably designated as Roth Contributions by the Participant in his or her deferral  election.  1.45 Salary Reduction Contributions. The amount contributed to the Plan pursuant to  a Participant’s Salary Reduction Election in accordance with Section 3.3.  1.46 Salary Reduction Election. The election by a Participant to have part of the  amount that otherwise would have been paid as Compensation converted to an Employer  contribution in accordance with Section 3.3.  





 






-9-  1.47 Section 415 Compensation. The total compensation paid by the Employer to an  Employee with respect to each Plan Year that is currently includible in gross income and required  to be reported as wages on the Employee’s Form W-2, plus amounts that would be includible in  the Employee’s gross income but for an election under Code Section 125(a) (including “deemed  section 125 compensation” as defined in Treasury Regulation Section 1.415(c)-2(g)(6)(ii)),  132(f)(4), 402(e)(3), 402(h)(1)(B), 402(k), or 457(b). The annual amount of Section 415  Compensation of each Employee taken into account under the Plan shall not exceed $285,000, as  adjusted by the Commissioner of Internal Revenue for cost-of-living in accordance with Code  Section 401(a)(17)(B).  Section 415 Compensation shall not include compensation paid after a Participant  ceases to be an Employee except for (i) payments to an individual who does not presently perform  services for Employer by reason of service in the Uniformed Services to the extent such payments  do not exceed the amounts that the individual would have received if he or she had continued to  perform service for the Employer rather than entering service in the Uniformed Services; and (ii)  compensation that absent severance from employment would have qualified as Section 415  Compensation under this definition and would have been paid to the Employee while the  Employee continued in employment with the Employer, and that is received within two and one- half (21⁄2) months of the Employee’s severance from employment.  1.48 Self-Employed Individual. An individual who has Earned Income for the taxable  year from the trade or business for which the Plan is established or who would have had such  Earned Income but for the fact that the trade or business had no net profits for the taxable year.  Self-Employed Individuals include Owner-Employees, i.e., sole proprietors or partners who own  more than ten percent (10%) of either the capital or profits interest of the partnership.  1.49 Spouse. A Participant’s Spouse shall be the legal spouse or Surviving Spouse of  the Participant, provided that the Plan will treat a former spouse as the Spouse or Surviving Spouse  to the extent provided under a qualified domestic relations order as described in Code Section  414(p).  1.50 Surviving Spouse. The person legally married to a Participant on the earlier of the  date of his death or Benefit Commencement Date.  1.51 Trust. The trust established under the Plan to which Plan contributions arc made  and in which Plan assets are held.  1.52 Trust Fund. The assets of the Trust held by or in the name of the Trustee.  1.53 Trustee. The person appointed as trustee pursuant to, and having the  responsibilities specified in, the provisions of Article XI of the Plan, and any successor trustee.  1.54 Valuation Date. Each business day of each Plan Year on which the New York  Stock Exchange is open, or any other day of the Plan Year as determined by the Committee.  1.55 Year of Service. An Employee shall be credited with one Year of Service for each  12-month period coinciding with the Plan Year (including periods commencing prior to the  adoption of the Plan), in which the Employee is credited with at least 1,000 Hours of Service.  





 






-10-  ARTICLE II    PARTICIPATION  2.1 Admission as a Participant. Each Employee who was eligible to participate in the  Plan immediately prior to November 3, 2020, shall continue to be eligible to participate in the Plan  as amended and restated effective as of November 3, 2020. Each other Eligible Employee shall be  eligible to participate in the Plan on the first Entry Date coinciding with or next following the date  he has attained age twenty-one (21) and has performed an Hour of Service on or after November  3, 2020 or first performs an Hour of Service following a break in service on or after such date. An  Eligible Employee described in the preceding sentence who fails to make an affirmative election  on the appropriate form (or electronic media) in advance of such Entry Date to participate or not  participate in the Plan shall be automatically enrolled as a Participant in the Plan one month after  the Entry Date (an “Auto-Enrolled Participant”). Salary Reduction Contributions shall be made in  accordance with Section 3.3 on behalf of Auto-Enrolled Participants.  2.2 Provision of Information. Each Employee who becomes a Participant shall  execute such forms as the Committee requires and shall make available to the Committee any  information it reasonably requests. By virtue of his or her participation in this Plan, an Employee  agrees, on his or her own behalf and on behalf of all persons who may have or claim any right by  reason of the Employee’s participation in the Plan, to be bound by all provisions of the Plan and  by any agreement entered into pursuant thereto.  2.3 Termination of Participation. A Participant shall cease to be a Participant: (i)  upon his or her death; or (ii) upon the payment to him or her of all benefits due to him or her under  the Plan.  2.4 Rollover Membership. An Eligible Employee who makes a Rollover Contribution  shall become a Participant as of the date of such contribution, even if the Eligible Employee has  not previously become a Participant. Such an Eligible Employee shall be a Participant only for the  purposes of such Rollover Contribution and shall not be eligible to make other contributions or to  share in contributions made by an Employer until the Eligible Employee has met the requirements  of Section 2.1.  2.5 Special Rules Relating to Veterans Reemployment Rights Under USERRA.  The following special provisions shall apply to an Employee or Participant who is reemployed in  accordance with the reemployment provisions of the Uniformed Services Employment and  Reemployment Rights Act (“USERRA”) following a period of qualifying military service (as  determined under USERRA):  (a) Each period of qualifying military service served by an Employee or  Participant shall, upon such reemployment with an Employer, be deemed to constitute  service with the Employer for all purposes of the Plan.  (b) The Plan shall permit the Participant to make up Salary Reduction  Contributions and/or After-Tax Contributions missed during the period of qualifying  military service. The Participant shall have a period of time beginning on the date of the  





 






-11-  Participant’s reemployment with the Employer following his or her period of qualifying  military service and extending over the lesser of (i) the Participant’s period of qualifying  military service multiplied by three, and (ii) five years, to make up such missed Salary  Reduction Contributions and/or After-Tax Contributions.  (c) If the reemployed Participant elects to make up Salary Reduction  Contributions and/or After-Tax Contributions in accordance with paragraph (b) above and  directs that some or all of such Salary Reduction Contributions and/or After-Tax  Contributions (subject to the limitations set forth in Section 10.3) be invested in the BGC  Fund (as defined in Section 10.3), the Employer shall make any Matching Contributions  that would have been made on behalf of such Participant had the Participant made such  Salary Reduction Contributions and investment decisions during the period of qualifying  military service.  (d) If the Employer made any Qualified Nonelective Contributions to the Plan  during the period of qualifying military service, the Employer shall make a Qualified  Nonelective Contribution on behalf of the Participant upon the Participant’s  reemployment following his or her period of qualifying military service, in the amount  that would have been made on behalf of such Participant had the Participant been  employed during the period of qualifying military service.  (e) The Plan shall not (i) credit earnings to a Participant’s Accounts with  respect to any Salary Reduction Contribution, After-Tax Contribution, or Matching  Contribution before such contribution is actually made, or (ii) make up any allocation of  forfeitures, with respect to the period of qualifying military service. A reemployed  Participant shall be entitled to accrued benefits attributable to Salary Reduction  Contributions only if such contributions are actually made.  (f) For all purposes under the Plan, including an Employer’s liability for  making contributions on behalf of a reemployed Participant as described above, the  Participant shall be treated as having received Compensation from the Employer based on  the rate of Compensation the Participant would have received during the period of  qualifying military service, or if that rate is not reasonably certain, on the basis of the  Participant’s average rate of Compensation during the twelve (12)-month period  immediately preceding such period.  (g) If a Participant makes a Salary Reduction Contribution or the Employer  makes a Matching Contribution in accordance with the foregoing provisions of this Section  2.5:  (1) such contributions shall not be subject to any otherwise applicable  limitation under Code Section 402(g), 404(a) or 415, and shall not be taken into  account in applying such limitations to other Participant or Company contributions  under the Plan or any other plan with respect to the year in which such contributions  are made. Such contributions shall be subject to these limitations only with respect  to the year to which such contributions relate and only in accordance with Treasury  Regulations; and  





 






-12-  (2) the Plan shall not be treated as failing to meet the requirements of  Code Section 401(a)(4), 401(a)(26), 401(k)(3), 401(k)(11), 401(k)(12), 401(m), 410(b)  or 416 by reason of such contributions.  (h) A Participant who dies or incurs a Disability after December 31, 2006 while  performing qualified military service with respect to the Employer shall be treated as if the  Participant had resumed employment in accordance with the individual’s reemployment  rights on the day preceding death or Disability and terminated employment on the actual  date of death or Disability.  (i) A Participant receiving differential wage payments, as defined in Code  Section 3401(h)(2), from the Employer shall be treated an Employee of the Employer.  (j) Effective January 1, 2009, notwithstanding Section 2.5(i), for purposes of  Code Section 401(k)(2)(B)(i)(I) and Article VI of the Plan a Participant shall be treated as  having severed from employment during any period the Participant is performing service  in the uniformed services while on active duty for a period of more than 30 days. If the  Participant elects to receive a distribution by reason of such deemed severance from  employment, he or she may not make any Salary Reduction Contributions or After-Tax  Contributions during the six (6)-month period beginning on the date of distribution.  (k) For purposes of this Section 2.5(k), a “Qualified Reservist Distribution”  means a distribution from a Participant’s Salary Deferral Account if (i) the Participant was,  by reason of being a member of a reserve component (as defined for purposes of Code  Section 72(t)(2)(G)(iii)(II)), ordered or called to active duty for a period in excess of 179  days or for an indefinite period, and (ii) the distribution is made during the beginning on  the date of such order and ending at the close of the active duty period. Notwithstanding  any provision of the Plan to the contrary, a Participant described in clause (i) of the  preceding sentence may elect to receive a Qualified Reservist Distribution within the  period described in clause (ii) of the preceding sentence.  ARTICLE III  ACCOUNTS, CONTRIBUTIONS AND ALLOCATIONS  3.1 Participant Accounts.  (a) Each Participant for whom Employer contributions are made on account of  a Salary Reduction Election as described in Section 3.3 below shall have a Salary  Reduction Account to which the Trustee shall credit, or cause to be credited, all amounts  allocable to each such Participant pursuant to the Salary Reduction Election. The Trustee  shall invest the individual Account established for each Participant in accordance with the  provisions of Sections 10.3 and 10.4.  (b) Each Participant who makes a Rollover Contribution to the Plan pursuant  to Section 3.4 below shall have a Rollover Account to which the Trustee shall credit, or  cause to be credited, all Rollover Contributions made by the Participant. The Trustee shall  





 






-13-  invest the individual Account established for each Participant in accordance with the  provisions of Sections 10.3 and 10.4.  (c) Each Participant who makes a Roth Contribution to the Plan pursuant to  Section 3.4 below shall have a Roth Contribution Account to which the Trustee shall credit,  or cause to be credited, all Roth Contributions made by the Participant. The Trustee shall  invest the individual Account established for each Participant in accordance with the  provisions of Sections 10.3 and 10.4.  (d) Each Participant who makes an After-Tax Contribution to the Plan pursuant  to Section 3.5 below shall have an After-Tax Account to which the Trustee shall credit, or  cause to be credited, all After-Tax Contributions made by the Participant. The Trustee shall  invest the individual Account established for each Participant in accordance with the  provisions of Sections 10.3 and 10.4.  3.2 Employer Contributions.  (a) For each Plan Year, the Employer shall contribute to the Plan the amount of  the total Salary Reduction Contributions of all Participants made pursuant to Section 3.3.  (b) Pursuant to the Company’s discretion, the Company or an Employer may  contribute to the Plan an amount necessary to satisfy the Actual Deferral Percentage Test,  characterized as Qualified Nonelective Contributions, within two and one-half (2-1/2)  months following the Plan Year for which such contributions are allocated. Qualified  Nonelective Contributions can only be allocated to the Salary Reduction Accounts of  Participants who were NHCEs, and such contributions are subject to the same restrictions  with respect to distributions as are Salary Reduction Contributions.  (c) Notwithstanding the foregoing, however, the Employer’s contributions for  any Plan Year shall not exceed the maximum amount allowable as a deduction to the  Employer under the provisions of Code Section 404 unless such contribution is made to  provide minimum allocations under the Top-Heavy requirements in Article XIII.  (d) All contributions by an Employer shall be in cash or in property as is  acceptable to the Trustee.  (e) The Employer shall deliver to the Trustee the amount contributed pursuant  to Section 3.2(a)(ii) or Section 3.2(b) no later than the due date, including extensions, for  filing the Employers’ federal income tax returns for the taxable year coincident with or  within which the Plan Year with respect to which such contributions arc to be made ended.  3.3 Participant Salary Reduction Contributions. Each Eligible Employee who  becomes eligible to participate may elect that his or her Employer contribute on the Employee’s  behalf any whole percentage of the Employee’s Compensation, as the Employee shall elect, subject  to the following rules:  (a) Amount. A Participant may specify a Salary Reduction Contribution  amount equal to any whole percentage of his or her Compensation, not to exceed eighty  





 






-14-  percent (80%) thereof; provided that the Committee may specify a lower percentage  amount of contribution from time to time to prevent excess contributions or otherwise to  ensure compliance with the Code or ERISA. A Participant may make a separate Salary  Reduction Election with respect to the portion of his or her Compensation attributed to  bonus pay.  (b) Change. A Participant may change the specified percentage of Salary  Reduction Contributions at any time, but not retroactively, by making a revised election,  unless the Committee shall specify that it permits changes less frequently.  (c) Suspension. A Participant may suspend his or her Salary Reduction  Election at any time.  (d) Salary Reduction. A Participant’s compensation for a Plan Year shall be  reduced by the amount of the contribution that the Participant elects for such Plan Year.  (e) Election. All elections shall be made at the time, in the manner, and subject  to the conditions specified by the Committee, which shall prescribe uniform and  nondiscriminatory rules for such elections.  (f) Automatic Enrollment. Notwithstanding the foregoing, unless the  Committee receives notice to the contrary, on the appropriate form (or electronic media),  Salary Reduction Contributions at the Auto-Enrollment Percentage of each Auto-Enrolled  Participant’s Compensation shall automatically be made to the Plan each payroll period  until the Auto-Enrolled Participant elects to the contrary.  The “Auto-Enrollment  Percentage” means (i) six percent (6%) for each Auto-Enrolled Participant whose Entry  Date is on or after January 1, 2014, and (ii) four percent (4%) for each Auto-Enrolled  Participant whose Entry Date was on or after January 1, 2011 and before January 1, 2014,  and (iii) two percent (2%) for each Auto-Enrolled Participant whose Entry Date was before  January 1, 2011. Amounts deferred under this paragraph shall be initially invested in such  investment fund or funds directed by the Committee, provided that an Auto-Enrolled  Participant may direct at any time that the deferred amount be invested in such one or more  investment funds available under the Plan as the Auto-Enrolled Participant may designate.  Contributions made by the Employers under this Section shall be allocated to the  Salary Reduction Accounts for those Participants from whose Compensation the contributions  were withheld in an amount equal to the amount withheld. Such contributions shall be deemed to  be employer contributions made on behalf of Participants to a qualified cash or deferred  arrangement (within the meaning of Code Section 401(k)(2)).  The Committee may reduce the amount of any Salary Reduction Election, or make  such other modifications as necessary, so that the Plan complies with the provisions of Code  Section 401(k).  3.4 Roth Contributions. A Participant may elect to designate irrevocably (but not  retroactively) any portion of his Salary Reduction Contributions (including Catch-Up  Contributions) as Roth 401(k) contributions (“Roth Contributions”). Such designation may be  revoked only with respect to Salary Reduction Contributions made after the date of revocation.  





 






-15-  Roth Contributions shall be includible in the Participant’s income at the time the Participant would  have received such amount in cash if the Participant had not made such Salary Reduction Election.  3.5 After-Tax Contributions. Each Eligible Employee who becomes eligible to  participate may elect that his or her Employer contribute on the Employee’s behalf any whole  percentage of the Employee’s Compensation, on an after-tax basis, subject to the following rules:  (a) Amount. A Participant may specify an After-Tax Contribution amount  equal to any whole percentage of his or her Compensation, provided that the sum of such  percentage and the percentage elected in such Participant’s Salary Reduction Election shall  not exceed eighty percent (80%) of his or her Compensation, and that the Committee may  specify a lower percentage amount of contribution from time to time to prevent excess  contributions or otherwise to ensure compliance with the Code or ERISA. A Participant  may make a separate After-Tax Election with respect to the portion of his or her  Compensation attributed to bonus pay.  (b) Change. A Participant may change the specified percentage of After-Tax  Contributions at any time, but not retroactively, by making a revised election, unless the  Committee shall specify that it permits changes less frequently.  (c) Suspension. A Participant may suspend his or her After-Tax Election at any  time.  (d) Salary Withholding. The amount of a Participant’s After-Tax Contribution  shall be withheld on an after-tax basis from the Compensation to which it applies.  (e) Election. All elections shall be made at the time, in the manner, and subject  to the conditions specified by the Committee, which shall prescribe uniform and  nondiscriminatory rules for such elections.  Contributions under this Section shall be allocated to the After-Tax Accounts for  those Participants from whose Compensation the contributions were withheld in an amount equal  to the amount withheld. Such contributions shall be treated as employee contributions.  The Committee may reduce the amount of any After-Tax Election, or make such  other modifications as necessary, so that the Plan complies with the provisions of Code Section  401 (m).  3.6 Rollover Contributions. With the approval of the Committee, any Eligible  Employee who is a Participant, or who would be a Participant but for a failure to satisfy the  requirements of Article II, may make a Rollover Contribution to the Plan. A Rollover Contribution  shall be in cash or in such other property as is acceptable to the Trustee. If an Eligible Employee  makes a contribution pursuant to this Section that was intended to be a Rollover Contribution that  the Trustee later discovers not to be a Rollover Contribution, the Trustee shall distribute to such  Participant as soon as practicable after such discovery the Account Balance of his or her Rollover  Account determined as of the Valuation Date coincident with or immediately preceding such  discovery.  





 






-16-  3.7 Allocations to Salary Reduction Accounts. No later than the time specified in  Section 3.3, all contributions made pursuant to a Salary Reduction Election shall be allocated to  the Salary Reduction Account of the electing Participant.  3.8 Allocations to Rollover Accounts and Matching Contributions Accounts. No  later than the time specified in Section 3.2(f), all Rollover Contributions and Matching  Contributions made by since the last day of the previous month shall be allocated to the Rollover  Account and Matching Contributions Account, respectively, of the Participants on behalf of whom  such contributions were made.  3.9 Limitations on Salary Reduction Contributions. These terms have the following  meanings for purposes of the following Sections 3.9 through 3.13:  (a) “Actual Deferral Percentage” or “ADP” means the ratio of (i) Salary  Reduction Contributions on behalf of the Eligible Participant for the Plan Year to (ii) the  Eligible Participant’s Compensation for the Plan Year. In calculating the ADP, Salary  Reduction Contributions include Excess Elective Contributions for HCEs (whether they  were made under plans of unrelated employers or plans of the same or related employers)  but do not include Excess Elective Contributions for NHCEs. The ADP of an Eligible  Participant who does not make a Salary Reduction Election is zero.  (b) “Average Actual Deferral Percentage” means the average of the Actual  Deferral Percentages of the Eligible Participants in a group.  (c) “Eligible Participant” means, for purposes of determining the ADP, any  Eligible Employee who is eligible to have Salary Reduction Contributions allocated to his  or her Salary Reduction Account for the Plan Year.  (d) “Excess Contribution” means for any Plan Year, the excess of:  (1) the aggregate amount of Salary Reduction Contributions actually  made on behalf of HCEs for the Plan Year, over  (2) the maximum amount of those contributions permitted under the  ADP test in Section 3.12 (determined by reducing contributions made on behalf of  HCEs in the order of their Actual Deferral Percentages beginning with the highest  ADP).  (e) “Excess Elective Contribution” means the amount of Salary Reduction  Contributions for a calendar year that is includible in a Participant’s gross income under  Code Section 402(g) to the extent the Participant’s Salary Reduction Contributions exceed  the dollar limitation under Code Section 402(g).  3.10 Maximum Amount of Salary Reduction Contributions. A Participant may not  have Salary Reduction Contributions under this Plan, or any other qualified plan of the Company  or an Affiliate, during any taxable year in excess of the dollar limitation in Code Section 402(g) in  effect for that taxable year (e.g., $19,500 for 2020).  





 






-17-  3.11 Excess Elective Contributions. The Plan shall distribute Excess Elective  Contributions and income allocable to those amounts no later than the first April 15 following the  close of a Participant’s taxable year to Participants who claim allocable Excess Elective  Contributions for the preceding calendar year,  (a) The Participant’s claim must be written and submitted to the Committee no  later than March 15, The claim must specify the amount of the Participant’s Excess Elective  Contributions for the preceding calendar year and must be accompanied by the  Participant’s written statement that if those amounts are not distributed, the Excess Elective  Contributions, when added to amounts deferred under other plans or arrangements  described in Code Section 401(k), 402(h)(1)(B), 403(b), 457, or 501 (c)( 18) exceeds the  limit imposed on the Participant by Code Section 402(g) for the year in which the deferral  occurred. The written claim required under this Section 3.11(a) shall be deemed to have  been provided to the Committee if the Committee discovers that a Participant has made  Excess Elective Contributions under the Plan and other plans of the Company or an  Affiliate.  (b) The Excess Elective Contributions distributed to a Participant shall be  adjusted for income or loss through the close of the Plan Year in which the Excess Elective  Contributions were made. Income and loss allocable to Excess Elective Contributions for  a Participant shall be determined in a nondiscriminatory manner (within the meaning of  Code Section 401 (a)(4)) consistent with the valuation of Participant Accounts under  Section 10.5.  (c) The amount of Excess Elective Contributions distributed to a Participant is  reduced by any Excess Contributions previously distributed pursuant to Section 3.11 to the  Participant for the Plan Year beginning with or within that taxable year. In no event may  the amount distributed exceed the Participant’s total Salary Reduction Contributions for  the taxable year.  (d) Excess Elective Contributions distributed prior to the first April 15  following the close of the Participant’s taxable year arc not treated as Annual Additions  under Section 3.17 for the preceding Limitation Year.  (e) Any Salary Reduction Contributions that are properly distributed under  Section 3.17 as excess Annual Additions are disregarded in determining if there are Excess  Elective Contributions.  (f) A Participant may designate the extent to which any Excess Elective  Contributions are comprised of Salary Reduction Contributions and Roth Contributions,  but only to the extent such types of deferrals were made for the Plan Year. In the absence  of such designation, Excess Elective Contributions shall be deemed to consist first of  Salary Reduction Contributions to the extent thereof, and then (to the extent necessary) of  Roth Contributions.  3.12 Actual Deferral Percentage Test.  





 






-18-  (a) The Average Actual Deferral Percentage for Eligible Participants who are  HCEs for the Plan Year may not exceed:  (1) the Average Actual Deferral Percentage for Eligible Participants  who are NHCEs for the prior Plan Year multiplied by 1.25; or  (2) the Average Actual Deferral Percentage for Eligible Participants  who are NHCEs for the prior Plan Year multiplied by 2, provided that the Average  Actual Deferral Percentage for Eligible Participants who are HCEs does not exceed  the Average Actual Deferral Percentage for Eligible Participants who are NHCEs  by more than 2 percentage points.  (b) The provisions of Code Section 401(k)(3) and Department of Treasury  Regulation Section 1.401(k)-2 are incorporated by reference.  (c) Qualified Nonelective Contributions for any Plan Year will be treated as  Salary Reduction Contributions in the Actual Deferral Percentage test under this Section  3.12; provided, however, that a Qualified Nonelective Contribution shall not be taken into  account for this purpose to the extent it exceeds the greater of five percent (5%) of the  Participant’s Compensation or the Plan’s representative contribution rate for NHCEs for  the Plan Year.  (d) The ADP for any Employee who is an HCE for the Plan Year and who is  eligible to have elective contributions allocated to his or her account under two (2) or more  plans or arrangements described in Code Section 401(k) that are maintained by the  Company or an Affiliate is determined as if all Salary Reduction Contributions were made  under a single arrangement. If the cash or deferred arrangements have different plan years,  all cash or deferred arrangements ending within the same calendar year are treated as a  single arrangement. Notwithstanding the foregoing, certain plans shall be treated as  separate if mandatorily disaggregated under Code Section 401(k) and the Treasury  Regulations issued thereunder.  (e) Notwithstanding the foregoing, at the election of the Committee and in  accordance with rules uniformly applicable to all affected Participants, the Actual Deferral  Percentage reduction described in this Section may be accomplished, in whole or in part,  by recharacterizing Excess Elective Contributions as Catch-Up Contributions made  pursuant to Section 3.18 and to the extent permitted by Code Section 414(v).  (f) If this Plan satisfies the requirements of Code Section 401(a)(4), 401(k), or  410(b) only if aggregated with one or more other plans, or if one or more other plans satisfy  the requirements of one or more of those Code Sections only if aggregated with this Plan,  then this Section 3.12 is applied by determining the ADP of Eligible Participants as if all  the plans were a single plan.  (g) The Committee also may treat one or more plans as a single plan with this  Plan whether or not the aggregated plans satisfy Code Sections 401(a)(4) and 410(b).  However, those plans must then be treated as one plan under Code Sections 401(a)(4),  





 






-19-  401(k), and 410(b). Plans may be aggregated under this Section 3.12(g) only if they have  the same plan year and use the same testing method.  (h) Salary Reduction Contributions and Qualified Nonelective Contributions  are considered made for a Plan Year if made no later than the end of the 12-month period  beginning on the day after the close of the Plan Year.  (i) The determination and treatment of the Salary Reduction Contributions,  Qualified Nonelective Contributions, and ADP of any Participant must satisfy such other  requirements as the Secretary of the Treasury may prescribe including, without limitation,  record retention requirements.  3.13 Excess Contributions. Excess Contributions and income allocable to those  contributions will be distributed no later than the last day of each Plan Year to Participants to  whose Account the Excess Contributions were made for the preceding Plan Year. The Committee  anticipates that the Excess Contributions will be distributed to affected Participants within 2-1⁄2  months after the close of the Plan Year in which the Excess Contributions occurred.  First, the Committee shall determine the dollar amount of excess contributions for  each affected HCE, by reducing the actual deferral percentage for each HCE whose actual deferral  percentage(s) is (are) the highest at any one time in the following manner until the ADP Test in  Section 3.12 is satisfied.  (a) the ADP of each HCE whose ADP is the greatest shall be reduced by one-  hundredth (1/100) of one percentage point.  (b) If more reduction is needed, the ADP of each HCE whose ADP is the  greatest (including the ADP of any HCE whose ADP was adjusted under (a)) shall be  reduced by one-hundredth (1/100) of one percentage point.  (c) If more reduction is needed, the Committee will repeal the procedures of  step (b).  However, in applying steps (a) through (c) above, rather than actually distributing  the amount of Salary Reduction Contributions necessary to reduce the ADP of each affected HCE  to an amount sufficient to satisfy the ADP Test in order of such HCE’s actual deferral percentages,  the Committee will determine the total of the dollar amounts calculated in steps (a) through (c)  above (the “excess contributions”) and distribute such amounts as follows:  (d) The Salary Reduction Contributions of the HCE with the highest dollar  amount of Salary Reduction Contributions will be reduced by the amount required to cause  that HCE’s Salary Reduction Contributions to equal the dollar amount of the Salary  Reduction Contributions of the HCE with the next highest dollar amount of Salary  Reduction Contributions. The Committee then would distribute this amount to the HCE  with the highest dollar amount of Salary Reduction Contributions. However, if a lesser  reduction, when added to the total dollar amount already distributed under this step, would  equal the total excess contributions, the Committee will distribute the lesser dollar amount,  





 






-20-  (e) If the total amount distributed under step (d) is less than the total excess  contributions, then the Committee will repeat step (d).  Any refund made in accordance with this Section to a Participant shall be drawn  from the Participant’s Salary Reduction Account.  (f) The Excess Contributions distributed to a Participant shall be adjusted for  income and losses through the end of the Plan Year in which the Excess Contributions were  made. The income or loss attributable to Excess Contributions shall be determined in a  nondiscriminatory manner (within the meaning of Code Section 401(a)(4)), consistent with  the valuation of Participant Accounts under Section 10.5.  (g) The Excess Contributions distributed to a Participant are reduced by the  amount of Excess Elective Contributions distributed to the Participant.  (h) Excess Contributions are treated as Annual Additions under Section 3.17.  3.14 Limitations on After-Tax Contributions and Matching Contributions. These  terms have the following meanings for purposes of the following Sections 3.14 through 3.16:  (a) “Average Contribution Percentage” or “ACP” means the average of the  Contribution Percentages of the Eligible Participants in a group.  (b) “Contribution Percentage” means the ratio of (i) the sum of the After-Tax  Contributions and Matching Contributions of the Eligible Participant to (ii) the Eligible  Participant’s Compensation for such Plan Year.  (c) “Eligible Participant” means, for purposes of determining the ACP, any  Eligible Employee who is eligible to make contributions under Section 2.1 at any time  during a Plan Year.  (d) “Excess Aggregate Contribution” means for any Plan Year the excess of the  aggregate amount of After-Tax Contributions and Matching Contributions allocated on  behalf of HCEs for such Plan Year over the maximum amount of such contributions that  could be allocated to HCEs under Section 3.15(a).  3.15 ACP Test. In no event shall the ACP for Participants who are HCEs for any Plan  Year bear a relationship to the ACP for Participants who are NHCEs that does not satisfy either  Section 3.15(a) or (b) below.  (a) The requirement shall be satisfied for a Plan Year if the ACP for the Eligible  Participants who are HCEs is not more than the ACP for the prior Plan Year for all Eligible  Participants who are NHCEs multiplied by 1.25.  (b) The requirement shall be satisfied for a Plan Year if (i) the excess of the  ACP for the Eligible Participants who are HCEs for the Plan Year over the ACP of all  Eligible Participants who are NHCEs for the prior Plan Year is not more than two  





 






-21-  percentage points and (ii) the ACP for Participants who are HCEs is not more than the ACP  for the prior Plan Year of all Eligible Participants who are NHCEs multiplied by two.  3.16 Excess Aggregate Contributions. If the relationship of the Average Contribution  Percentages does not satisfy the provisions of Section 3.15 for any Plan Year, then the Committee  shall direct the Trustee to distribute the Excess Aggregate  Contribution for such Plan Year (plus any income and minus any loss allocable thereto including  the period between the end of the Plan Year and the date of distribution) by the last day of the  following Plan Year to the HCEs, as determined under this Section. If such Excess Aggregate  Contributions are distributed more than 2-1/2 months after the last day of the Plan Year in which  such excess amounts arose, a ten percent (10%) excise tax will be imposed on the Employer  maintaining the Plan with respect to those amounts.  (a) The portion of the Excess Aggregate Contribution attributable to an HCE is  determined and resolved under the procedures specified in Section 3.13. For purposes of  determining the sources of a distribution of Excess Aggregate Contributions, the sources  will be distributed in the following order: (i) After- Tax Contributions, and (ii) Matching  Contributions.  (b) The Excess Aggregate Contributions distributed to a Participant shall be  adjusted for income and losses through the end of the Plan Year in which the Excess  Aggregate Contributions were made. The income or loss attributable to Excess Aggregate  Contributions shall be determined in a nondiscriminatory manner (within the meaning of  Code Section 401(a)(4)), consistent with the valuation of Participant Accounts under  Section 10.5.  (c) The Contribution Percentage for any Participant who is an HCE for the Plan  Year and who is eligible to make after-tax contributions to any plan subject to Code Section  415 maintained by an Employer or Affiliate or to have Employer matching contributions  within the meaning of Code Section 401(m)(4)(A) allocated to his or her account under  two or more plans described in Code Section 401(a) that are maintained by an Employer  or an Affiliate shall be determined as if the total of such Participant contributions and  Employer contributions was made under this Plan and each other plan.  (d) In the event that this Plan satisfies the requirements of Code Section  401(a)(4) or 410(b) only if aggregated with one or more other plans, or if one or more other  plans satisfy the requirements of Code Section 410(b) only if aggregated with this Plan,  then Section 3.15 shall be applied by determining the “contribution percentages” of  Participants as if all such plans were a single plan.  3.17 Defined Contribution Limitation. The Annual Additions allocated to any  Participant under this Plan plus the Annual Additions allocated to such Participant under any other  plan maintained by an Employer any Limitation Year shall not exceed the lesser of (i) $57,000 (as  adjusted under Code Section 415(d)) or (ii) one hundred percent (100%) of such Participant’s  Compensation for such Limitation Year. If a short Limitation Year is created because of an  amendment changing the Limitation Year to a different consecutive 12-month period, the defined  





 






-22-  contribution dollar limitation will be prorated based on the number of months in the short  Limitation Year.  The Internal Revenue Service’s Employee Plans Compliance Resolution System  (EPCRS) shall be the sole available correction method in the event Annual Additions exceed the  foregoing limit.  3.18 Catch-up Contributions for Individuals Age 50 or Over. The Plan will permit  each “Age 50 and Over Participant” to make additional Salary Reduction Contributions (“Catch- Up Contributions”) in any Plan Year.  (a) The Plan shall not permit Catch-Up Contributions for any year in an amount  greater than the lesser of:  (i) $6,500 (as adjusted by the Commissioner of Internal  Revenue for cost-of-living in accordance with Code Section 414(v)(2)(C)),  or  (ii) the excess (if any) of (I) the Age 50 and Over Participant’s  compensation (as defined in Code Section 415(c)(3)) for the year, over (II)  any other Salary Reduction Contributions the Age 50 and Over Participant  makes for the Plan Year, other than under this subsection.  (b) Catch-Up Contributions to the Plan under this subsection shall not, with  respect to the Plan Year in which the contribution is made:  (i) be subject to any otherwise applicable limitation contained  in Section 402(g), 402(h), 403(b), 404(a), 404(h), 408(k), 408(p), 415, or  457, or  (ii) be taken into account in applying such limitations to other  contributions or benefits under the Plan or any other plan.  The Plan will not be treated as failing to meet the requirements of Code Section  401(a)(4), 40l(a)(26), 40l(k)(3), 401(k)(11), 40l(k)(12), 403(b)(12), 408(k), 408(p), 408B,  410(b), or 416 by reason of the making of (or the right to make) Catch-Up Contributions.  For all other purposes of the Plan, Catch-up Contributions shall be treated as Salary  Reduction Contributions.  (c) For purposes of this subsection, the term “Age 50 and Over Participant”  means, with respect to any Plan Year, each Participant in the Plan: (i) who has attained the  age of 50 before the close of the Plan Year, and (ii) with respect to whom no other Salary  Reduction Contributions may (without regard to this subsection) be made to the Plan for  the Plan Year by reason of the application of any limitation or other restriction described  in Code Section 402(g), 402(h), 403(b), 404(a), 404(h), 408(k), 408(p), 415, or 457 or  comparable limitation or restriction contained in the terms of the Plan.  





 






-23-  ARTICLE IV    MAXIMUM CONTRIBUTIONS AND BENEFITS  4.1 Determination of Vesting. A Participant shall have a vested percentage of one  hundred percent (100%) in his or her Salary Reduction Account, Roth Contribution Account,  After-Tax Account, and Rollover Account at all times.  4.2 Vesting for Matching Contribution Account. A Participant’s interest in his  Matching Contribution Account will become vested in accordance with the following schedule  based on the Participant’s Years of Service:  Nonforfeitable  Years of Service Percentage          Less than 1 year 0%  1 year but less than 2 years 33%  2 years but less than 3 years 66%  3 years or more 100%  Notwithstanding the foregoing: (i) a Participant’s Matching Contribution Account  will become folly and immediately vested upon the Participant’s Normal Retirement Date; (ii) a  Participant’s Matching Contribution Account will become fully and immediately vested upon the  death of a Participant as a result of the terrorist attack against the United States on September 11,  2001; and (iii) Matching Contributions made for Plan Years beginning on or after January 1, 2012  shall be fully and immediately vested.  The portion of a Participant’s Matching Contributions Account accrued by a  Participant who was employed by an Affiliate, and on whose behalf an employer contribution  account was maintained under the terms of said Affiliate’s plan on the day before the date the  Affiliate adopted this Plan, shall also be one hundred percent (100%) vested.  4.3 Years of Service for Vesting. For purposes of Section 4.2, the computation period  for determining a Year of Service or a Period of Severance shall be the Plan Year. For purposes of  Section 4.2, a Participant shall receive credit for all Years of Service, including Years of Service  prior to the Plan’s effective date, except as follows:  (a) If a Participant who has no nonforfeitable rights has a Period of Severance  equal to five (5) consecutive Plan Years, then Years of Service after such Period of  Severance shall not be taken into account for purposes of determining the nonforfeitable  percentage of the Participant’s Matching Contributions Account that accrued prior thereto.  (b) If a Participant who has no nonforfeitable rights has a Period of Severance  for the greater of (A) five or more consecutive Plan Years or (B) the accumulated Service  of the Participant prior to the Period of Severance, then Years of Service prior to such  Period of Severance shall not be taken into account for the purpose of determining the  nonforfeitable percentage of the Participant’s Matching Contributions Account that  accrues thereafter.  





 






-24-  (c) If distribution is made to a Participant on account of termination of  Employment prior to the date on which the Participant has a Period of Severance equal to  five consecutive Plan Years and the Participant returns to Employment covered by the Plan,  the Participant’s Account shall subsequently be determined without regard to the portion  thereof derived from pre-distribution Employment provided the Participant (i) received  distribution of the entire present value of the nonforfeitable portion of his or her Account  at the time of distribution, (ii) the amount of the distribution did not exceed $1,000, or the  Participant (with spousal consent, if applicable) voluntarily elected to receive the  distribution, and (iii) the Participant upon return to Employment covered by the Plan does  not repay the full amount of the distribution before the earlier of suffering a Period of  Severance equal to five consecutive Plan Years, or at the close of the Period of Severance  equal to five consecutive Plan Years commencing after the withdrawal. If timely repayment  is made, the Participant’s Account shall equal the sum of the repayment and the forfeitable  portion of the Participant’s Account on the date of distribution, unadjusted by gains or  losses subsequent to the distribution. Restoration required due to Trust Fund losses shall  be made, to the extent necessary, first from forfeitures in the Plan Year of repayment and  second from Employer contributions.  4.4 Allocation of Forfeitures. The nonvested portion of the Matching Contributions  Account of a Participant who terminates employment before becoming fully vested in his or her  Matching Contributions Account will be forfeited as of the last day of the Plan Year of the  Participant’s employment termination, subject to the right to restoration. The Committee will use  forfeitures as follows: first, to restore the forfeited portion of the Account of a rehired Participant;  then to reduce the Employer’s required Matching Contributions; and then to the payment of Plan  expenses.  Any remaining forfeitures will be allocated per capita as of the last day of the Plan Year  in which such forfeitures arise to Participants who are Employees on such date. The portion of a  Participant’s Account consisting of such allocated forfeitures shall be one hundred percent (100%)  vested.  ARTICLE V    BENEFITS FOR PARTICIPANTS  The following are the only post-Employment benefits provided by the Plan:  5.1 Retirement Benefit. Each Participant shall be one hundred percent (100%) fully  vested in his or her Account on and after the Participant’s Normal Retirement Date. The  Participant’s Account shall be distributed on or after the Participant’s Normal Retirement Date in  accordance with Section 6.2. A Participant who continues Employment beyond his or her Normal  Retirement Date shall continue to participate in the Plan. A Participant’s Account shall become  nonforfeitable upon attainment of his or her Normal Retirement Date as an Employee.  5.2 Death Benefit. In the event of a Participant’s death before actual retirement or  termination, the Participant’s vested Account balance shall be distributed, pursuant to Article VIII,  to the Participant’s designated Beneficiary or, if no Beneficiary designation is then in effect, to the  Beneficiary determined pursuant to Section 8.2. In the event of the death of a retired or terminated  Participant before distribution of his or her Account has been made to him, the Participant’s vested  





 






-25-  Account balance shall constitute a death benefit and shall be distributed (i) to the Participant’s  designated Beneficiary or (ii) if no Beneficiary designation is then in effect, to the Beneficiary  determined pursuant to Section 8.2.  5.3 Termination of Employment Benefit. In the event a Participant terminates  Employment with all Employers and all Affiliates, other than by reason of retirement on or after  his or her Normal Retirement Date, the Participant shall be entitled to receive a benefit equal to  one hundred percent (100%) of his or her Salary Reduction Account, Roth Contribution Account,  After-Tax Account and Rollover Account, and the nonforfeitable portion of his or her Matching  Contributions Account determined under Section 4.2.  ARTICLE VI    AMOUNT AND PAYMENT OF BENEFITS TO PARTICIPANTS  6.1 Separation from Employment. A Participant’s benefits upon his or her separation  from Employment for any reason shall be the Account Balance of his or her Account determined  as of the Valuation Date coincident with or immediately succeeding the Participant’s termination  of Employment. The Plan shall pay the Participant’s benefits as soon as practicable after such  Valuation Date; provided, however, if such Participant’s benefits (excluding the Participant’s  Rollover Account) exceed $5,000, the Participant may elect to defer the distribution of his or her  benefits until his or her Normal Retirement Date, but may request in writing such form of  distribution at any time between the date of deferral and such Normal Retirement Date.  Notwithstanding the foregoing, except as provided in Section 6.2, in no event shall  a Participant who, upon the Valuation Date coincident with or immediately succeeding his or her  termination of Employment, has an Account Balance (excluding the Participant’s Rollover  Account) of more than $5,000 receive such amount without his or her written consent. If the  Committee does not obtain the Participant’s written consent because the Account Balance  (excluding the Participant’s Rollover Account) is $5,000 or less, the distribution will be paid in a  Direct Rollover to an individual retirement plan designated by the Committee.  If the Participant’s  Account Balance (excluding the Participant’s Rollover Account) exceeds $5,000, benefits shall be  paid as soon as practicable after his or her written request, and shall be equal to the Participant’s  Account Balance as of the Valuation Date coincident with or immediately succeeding his or her  request for payment. The Committee shall notify a Participant of his or her right to defer  commencement of benefits, which notice shall be provided not less than thirty (30) days nor more  than ninety (90) days before the Benefit Commencement Date. However, distribution may  commence less than thirty (30) days after the notice required under Treasury Regulation Section  1.411(a)-11(c) is given (as described above); provided that the Committee clearly informs the  Participant that the Participant has a right to a period of at least thirty (30) days after receiving the  notice to consider the decision of whether or not to elect a distribution and the Participant after  receiving the notice, affirmatively elects a distribution.  6.2 Benefit Commencement Date.  (a) Except as provided in Section 6.2(b), and subject to the consent requirement  contained in Section 6.1, unless a Participant otherwise elects, the Plan shall make payment  





 






-26-  of benefits under Section 6.1 as soon as practicable after the Participant’s termination of  Employment, but no later than the sixtieth (60th) day after the close of the Plan Year in  which the latest of the following events occurs:  (1) The Participant’s Normal Retirement Date;  (2) The tenth (10th) anniversary of the year in which the Participant  commenced participation; or  (3) The Participant’s termination of Employment.  If the amount of benefits payable to or in respect of a Participant cannot be  determined within this sixty (60)-day period, or if it is not possible to pay such benefits  within such period because the Committee has been unable to locate the Participant or the  Participant’s Beneficiary, as the case may be, after making reasonable efforts to do so, then  a payment, retroactive to such sixtieth (60th) day, shall be made no later than sixty (60)  days after the earliest date on which the amount of such benefits can be determined or the  Participant can be located, as the case may be.  (b) Notwithstanding anything to the contrary in Section 6.2(a), the Participant’s  distribution of benefits must commence on or before April 1st of the calendar year  following the calendar year in which occurs the later of (1) the Participant attains age  seventy-two (72) (or age seventy and one-half (70-1⁄2), in the case of a Participant who  attained age seventy and one-half (70-1⁄2) prior to January 1, 2020), or (2) the Participant  terminates Employment; except that, for any Participant who is a five percent (5%) owner  of an Employer, the distributions of benefits must commence by April 1 of the calendar  year following the calendar year in which the Participant attains age seventy-two (72) (or  age seventy and one-half (70-1⁄2), in the case of a Participant who attained age seventy and  one-half (70-1⁄2) prior to January 1, 2020).  (c) Except as otherwise provided in Section 6.2(d), for calendar years  beginning on and after January 1, 2003, the Plan shall apply the minimum distribution  requirements under Code Section 401(a)(9) in accordance with final and temporary  Treasury Regulations under Code Section 401(a)(9) that were issued by the Internal  Revenue Service on April 17, 2002 and June 15, 2004 (as corrected on November 22, 2004)  as amended, including Treasury Regulations Sections 1.401(a)(9)-2 through 1.401(a)(9)-9  and the incidental death benefit requirement in Code Section 401(a)(9)(G).  Provisions  reflecting Code Section 401(a)(9) and the Treasury Regulations issued thereunder override  any distribution options in the Plan inconsistent with Code Section 401(a)(9).  (d) 2020 Temporary Suspension.  Effective March 27, 2020:  (1) A Participant or Beneficiary who would have been required to  receive required minimum distributions in 2020 (or paid in 2021 for the 2020  calendar year for a participant with a required beginning date of April 1, 2021) but  for the enactment of Code Section 401(a)(9)(I) (“2020 RMDs”), and who would  have satisfied that requirement by receiving distributions that are either (i) equal to  the 2020 RMDs or (ii) one or more payments (that include the 2020 RMDs) in a  





 






-27-  series of substantially equal periodic payments made at least annually and expected  to last for the life (or life expectancy) of the Participant, the joint lives (or joint life  expectancies) of the Participant and the Participant’s designated Beneficiary, or for  a period of at least ten (10) years, shall not receive those distributions for 2020  unless the Participant or Beneficiary chooses to receive such distributions.  (2) For purposes of Section 6.5, a Direct Rollover shall be offered only  for distributions that would be Eligible Rollover Distributions without regard to  Code Section 401(a)(9)(I).  (3) This Section 6.2(d) shall be subject in all respects to the provisions  of Code Section 401(a)(9)(I), and in the event of any inconsistencies between this  Section 6.2(d) and Code Section 401(a)(9)(I) the provisions of Code Section  401(a)(9)(I) shall control.  6.3 Forms of Payment. All benefits under this Plan shall be payable in the form of a  single, lump sum distribution.  6.4 Consent of Spouse. If in the opinion of the Committee any Spouse shall, by reason  of the law of any jurisdiction, appear to have any interest in any benefit that might become payable  to a Participant, the Committee may, as a condition precedent to the making of any election or  distribution under this Plan, require such written release or releases, or such other documents, as  in its discretion it shall determine to be necessary, desirable or appropriate to prevent or avoid any  conflict or multiplicity of claims with respect to payment of any benefits under the Plan.  6.5 Direct Rollover of Eligible Rollover Distributions. Notwithstanding any  provision of the Plan to the contrary that would otherwise limit an “Eligible Distributee’s” election  under this plan, an Eligible Distributee may elect, at the lime and in the manner prescribed by the  Committee, to have any portion of an “Eligible Rollover Distribution” paid directly to an “Eligible  Retirement Plan” specified by the Eligible Distributee in a Direct Rollover.  (a) “Eligible Rollover Distribution” means any distribution of $200 or more of  all or any portion of the balance to the credit of the Eligible Distributee, except that an  Eligible Rollover Distribution shall not include: 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  Eligible Distributee and the Eligible Distributee’s designated Beneficiary, or for a  specified period of ten years or more; any distribution to the extent such distribution is  required under Code Section 401(a)(9); the portion of any distribution that is not includible  in gross income (determined without regard to the exclusion for net unrealized  appreciation with respect to employer securities); and any hardship distribution. A portion  of a distribution shall not fail to be an eligible rollover distribution merely because the  portion consists of after-tax employee contributions which are not includible in gross  income. However, such portion may be transferred only to an individual retirement  account or annuity described in Code Section 408(a) or (b), or to a qualified defined  contribution plan described in Code Section 401(a) or 403(a) that agrees to separately  account for amounts so transferred, including separately accounting for the portion of such  





 






-28-  distribution which is includible in gross income and the portion of such distribution which  is not so includible. If a direct trustee to trustee transfer is made to an individual retirement  plan established for the purpose of receiving the distribution on behalf of an individual  who is a nonspouse designated Beneficiary of a deceased Participant, the distribution shall  be treated as an eligible rollover distribution.  (b) “Eligible Retirement Plan” means an individual retirement account  described in Code Section 408(a), an individual retirement annuity described in Code  Section 408(b), an annuity plan described in Code Section 403(a), or a qualified trust  described in Code Section 401(a), that accepts the Eligible Distributee’s rollover  distribution; and an eligible deferred compensation plan described in Code Section 457(b)  which is maintained by an eligible employer described in Code Section 457(e)(1)(A), if  such plan separately accounts for distributions from a plan such as this Plan, and annuity  contracts described in Code Section 403(b). Effective for distributions made after  December 31, 2007, an eligible retirement plan shall include a Roth IRA.  (c) “Eligible Distributee” means Employee or former Employee. In addition,  the Employee’s or former Employee’s Surviving Spouse and the Employee’s or former  Employee’s Spouse who is the alternate payee under a qualified domestic relations order,  as defined in Code Section 414(p), are Eligible Distributees with regard to the interest of  the Spouse or former Spouse.  (d) “Direct Rollover” means a payment by the Plan to the Eligible Retirement  Plan specified by the Eligible Distributee.  If a distribution is one to which Code Sections 401(a)(11) and 417 do not apply,  such distribution may commence less than 30 days after the notice required under Treasury  Regulation Section 1.411(a)-11(c) is given, provided that: (i) the Committee clearly informs the  Participant that he or she has a right to a period of at least 30 days after receiving the notice to  consider the decision of whether or not to elect a distribution (and, if applicable, a particular  distribution option); and (ii) the Participant, after receiving the notice, affirmatively elects a  distribution.  ARTICLE VII    LOANS AND WITHDRAWALS  7.1 Withdrawals. Each Participant, prior to termination of Employment, may elect to  withdraw all or any part of his or her Rollover Account and After-Tax Account in accordance with  such rules or procedures as the Committee may adopt. A Participant who has attained age fifty- nine and one-half (59-1⁄2) may withdraw all or part of his or her Account in accordance with such  rules or procedures as the Committee may adopt. Any withdrawal under this Section will be as of  the Valuation Date coincident with or immediately preceding the date of distribution to the  Participant, and upon such notice as the Committee may require.  7.2 Hardship Withdrawals. Except as provided in the first sentence of Section 7.1  and Sections 7.6 and 7.7, prior to age fifty-nine and one-half (59-1⁄2), a Participant may make a  withdrawal from his or her vested Account only if the Participant demonstrates to the Committee  





 






-29-  that either he has incurred a Disability or that the withdrawal is necessitated by hardship as a result  of the Participant’s immediate and heavy financial needs. Prior to January 1, 2019, all such  hardship withdrawals from the Participant’s Salary Reduction Account and/or Roth Contribution  Account shall (i) be limited to the contributions made pursuant to the Salary Reduction Election,  and (ii) include only earnings thereon allocable to the Participant’s Salary Reduction Account as  of December 31, 1988. On and after January 1, 2019, hardship withdrawals from the Participant’s  Salary Reduction Account and/or Roth Contribution Account shall include the contributions made  pursuant to the Salary Reduction Election and all earnings thereon. Distributions under this Section  7.2 shall be limited to the amount demonstrated by the Participant to be necessary to meet the  immediate financial need created by the hardship and not reasonably available from the  Participant’s other resources, including, without limitation, any other in-service withdrawals,  distributions and non-taxable loans available under this Plan from time to time or any other plan  maintained by the Company. All determinations regarding financial hardship, which may be made  upon a Participant’s written representations, shall be made in accordance with objective criteria  and shall be made in accordance with written procedures established by the Committee. Such  written procedures shall specify the requirements for requesting and receiving distributions on  account of financial hardship.  A distribution will be deemed to be on account of an immediate and heavy financial  need of the Participant if the distribution is on account one of the following circumstances:  (a) expenses for (or necessary to obtain) medical care that would be deductible  under Code Section 213(d) (determined without regard to whether the expenses exceed  seven and one-half percent (7.5%) of adjusted gross income);  (b) costs directly related to the purchase of a principal residence for the  Participant (excluding mortgage payments);  (c) payment of tuition, related educational fees, and room and board expenses,  for up to the next 12 months of post-secondary education for the Participant or the  Participant’s spouse, children, or dependents (as defined in Code Section 152 without  regard to Code Sections 152(b)(1), (b)(2) and (d)(1)(B));  (d) payments necessary to prevent the eviction of the Participant from his or  her principal residence or foreclosure on the mortgage on that residence;  (e) payments for burial or funeral expenses for the Participant’s deceased  parent, spouse, children, or dependents (as defined in Section 152 without regard to Code  Section 152(d)(1)(B));  (f) effective for hardship distribution applications made on or after January 1,  2019, expenses for the repair of damage to the Participant’s principal residence that would  qualify for the casualty deduction under Code Section 165 (determined without regard to  Code Section 165(h) or whether the loss exceeds ten percent (10%) of adjusted gross  income);   (g) effective as of January 1, 2020, expenses and losses (including loss of  income) incurred by the Participant on account of a disaster declared by the Federal  





 






-30-  Emergency Management Agency (“FEMA”) under the Robert T. Stafford Disaster Relief  and Emergency Assistance Act, Public Law 100-707, provided that the Participant’s  principal residence on principal place of employment at the time of the disaster was located  in an area designated by FEMA for individual assistance with respect to the disaster; or  (h) such other circumstances as the Internal Revenue Service may designate in  regulations, rulings, or other documents of general applicability as giving rise to a deemed  immediate and heavy financial need.  The amount of any heavy and immediate financial need shall include any amount  reasonably necessary to pay any federal, state or local taxes or penalties reasonably anticipated to  result from the distribution. Effective January 1, 2010, a hardship withdrawal will also be available  under Sections 7.2(a), (c), and (e) with respect to a Primary Beneficiary under the Plan.  Any Participant who receives a hardship distribution under this Section 7.2 prior to  January 1, 2019 shall be suspended from making any contributions pursuant to Section 3.3 or 3.5  for six (6) months after receiving such distribution, or under any other plan maintained by the  Company or any Affiliate, whether qualified or nonqualified, including a stock option, stock  purchase, or similar plan, but excluding welfare plans and cafeteria plans. Such Participant can  resume participation as of the first day of the month following the expiration of the six (6) month  suspension period.  Any withdrawal under this Section will be as of the Valuation Date coincident with  or immediately preceding the date of the distribution to the Participant, and upon such notice as  the Committee may require. The Committee shall establish such rules and procedures with respect  to any withdrawal as it shall from time to time determine.    7.3 Loans. Pursuant to this Section 7.3, the Committee may establish a loan program.  (a) At such time as the Committee permits, a Participant who is a party-in- interest within the meaning of ERISA Section 3(14) may submit an application to borrow  from his or her vested Account (on such terms and conditions as the Committee shall  prescribe) an amount, when added to the outstanding balance of all other loans from the  Plan or any other qualified plan maintained by the Company or any Affiliate, not in excess  of the lesser of:  (1) $50,000, reduced by the excess (if any) of (i) the highest outstanding  loan balance of all loans from the Plan or any other qualified plan maintained by  the Company or any Affiliate during the one (1)-year period preceding the loan  over (ii) the outstanding balance on the date of the loan; or  (2) Fifty percent (50%) of the Participant’s vested Account on the  Valuation Date coincident with or immediately preceding the date the loan is made.  (b) If approved, each such loan shall comply with the following conditions:  (1) it shall be evidenced by a negotiable promissory note;  





 






-31-  (2) the rate of interest payable on the unpaid balance of such loan shall  not be less than the prevailing prime rate in effect at a commercial bank selected by  the Committee on the first business day of the month preceding the date on which  the loan is made;  (3) the loan, by its terms, must be entirely repaid within five (5) years;  provided, however, that if the proceeds of the loan are used to acquire the  Participant’s principal residence, the repayment schedule, in the Committee’s  discretion applied in a nondiscriminatory manner, may be for a term in excess of  five (5) years; and  (4) the loan shall be secured by the Participant’s vested Account;  provided, however, that notwithstanding the foregoing, no more than fifty percent  (50%) of a Participant’s vested Account shall serve as security for a loan hereunder.  (c) If a Participant is granted a loan, a “Loan Account” shall be established for  such Participant. All Loan Accounts shall be held by the Trustee, as part of the Trust Fund.  The loan amount shall be transferred from a Participant’s other Accounts and shall be  disbursed from the Loan Account. Subject to such ordering rules as the Committee may  adopt, the Participant may specify in the loan request from which Account(s) or Investment  Funds the loan amount is to be transferred. The promissory note executed by the Participant  shall be deemed deposited in his or her Loan Account.  (d) Principal and interest payments of a Participant’s loan shall be credited  initially to such Participant’s Loan Account and shall be transferred as soon as reasonably  practicable thereafter to such Participant’s Account. Any loss caused by nonpayment or  other default on a Participant’s loan obligations shall be borne solely by such Participant’s  Loan Account. Anything contained herein to the contrary notwithstanding, in the event of  a default, foreclosure on the promissory note and attainment of security will not occur until  a distributable event occurs under the Plan.  (e) The Committee shall charge a Participant such fees as incurred by the Plan  pursuant to agreement with the Trustee and/or Investment Fund.  (f) Loan payments will cease as of the last day a Participant is employed by an  Employer; provided, however, that notwithstanding the foregoing, such Participant may  elect to repay the outstanding balance of the loan at such time; and provided further, that  notwithstanding the foregoing, a Participant whose employment with an Employer  terminates in connection with a Disability may continue to repay the loan in accordance  with the repayment schedule in effect as of such Participant’s date of termination.  (g) A Participant shall be in default with respect to a loan on the last day of the  quarter following the quarter in which a loan repayment was missed.  (h) The Committee shall establish such rules and procedures with respect to  loans pursuant to this Section as it shall from time to time determine.  





 






-32-  (i) Notwithstanding any provision of the Plan to the contrary, in accordance  with rules and procedures established by the Committee, the amount of any loan requested  by a Coronavirus-Affected Participant during the period beginning on April 23, 2020 and  ending on September 22, 2020, when added to the outstanding balance of all other loans to  the Coronavirus-Affected Participant from the Plan or any other qualified plan maintained  by the Company or any Affiliate, shall not exceed the lesser of:  (1) $100,000, reduced by the excess (if any) of (i) the Coronavirus- Affected Participant’s highest outstanding loan balance of all loans from the Plan  or any other qualified plan maintained by the Company or any Affiliate during the  one (1)-year period preceding the loan over (ii) the outstanding balance of such  loans on the date of the loan; or   (2) One hundred percent (100%) of the Coronavirus-Affected  Participant’s vested Account on the Valuation Date coincident with or immediately  preceding the date the loan is made.  In addition, a Coronavirus-Affected Participant with an outstanding Plan  loan on or after March 27, 2020 may elect to suspend, for up to one (1) year, loan  repayments that would otherwise be due during the period beginning on April 23, 2020 and  ending on December 31, 2020 (the “Suspension Period”).  Provided the Coronavirus- Affected Participant elects to suspend loan repayments in accordance with this subsection  (i), the following shall apply:  (3) The Coronavirus-Affected Participant’s loan repayments shall  resume after December 31, 2020.   (4) Notwithstanding the repayment period limitation in Section  7.3(b)(3), the original loan payoff date shall be extended by one year.  (5) The Coronavirus-Affected Participant’s loan repayments shall be  reamortized to reflect the interest accrued during the Suspension Period and the  new loan payoff date in Section 7.3(i)(4) above.  7.4 Additional Distribution Events. In addition to the other distribution events set  forth in this Article VII, a Participant shall be eligible to receive a distribution from the Plan upon  the occurrence of any of the following events:  (a) Termination of the Plan without the establishment of another defined  contribution plan, other than an employee stock ownership plan (as defined in Code Section  4975(e)(7) or Code Section 409) or a simplified employee pension plan as defined in Code  Section 408(k): or  (b) A Participant’s severance from Employment.  7.5 Disaster Relief. Pursuant to relief provided by the IRS in guidance published in the  Internal Revenue Bulletin, the following rules will apply to a Federally Declared Disaster  Participant (defined below):  





 






-33-  (a) A distribution will be deemed to be on account of an “immediate and heavy  financial need” if the distribution is for any hardship of a Federally Declared Disaster  Participant; such hardship need is not limited to the reasons set forth in Sections 7.2(a)-(g).  (b) The post-distribution contribution restrictions set forth in Section 7.2 will  not apply to a Federally Declared Disaster Participant, and a Federally Declared Disaster  Participant will continue to be eligible to make Salary Reduction Contributions, Roth  Contributions and After-Tax Contributions as otherwise provided under the Plan after such  Participant’s receipt of a hardship distribution.  (c) To be eligible for the relief under this Section 7.5, any hardship distribution  received by a Federally Declared Disaster Participant who is a:  (1) Hurricane Harvey Participant must be made on or after August 23,  2017, and no later than January 31, 2018; and  (2) Hurricane Irma Participant must be made on or after September 4,  2017, and no later than January 31, 2018.  For purposes of this Section 7.5, a “Federally Declared Disaster Participant”  includes the following:  (d) “Hurricane Harvey Participant” means a Participant adversely affected by  Hurricane Harvey whose (x) principal residence or place of employment on August 23,  2017, was located in one of the Texas counties identified for individual assistance by the  Federal Emergency Management Agency (“FEMA”) because of the devastation caused by  Hurricane Harvey, determined in accordance with IRS Announcement 2017-11; or (y)  whose lineal ascendant or descendant, dependent, or spouse had a principal residence or  place of employment in one of these areas defined in (x) above on that date.  (e) “Hurricane Irma Participant” means a Participant adversely affected by  Hurricane Irma whose (x) principal residence or place of employment on September 4,  2017, was located in one of the Florida counties identified for individual assistance by  FEMA because of the devastation caused by Hurricane Irma, determined in accordance  with IRS Announcement 2017-13; or (y) whose lineal ascendant or descendant, dependent,  or spouse had a principal residence or place of employment in one of these areas defined  in (x) above on that date.  7.6 Coronavirus-Related Distribution. Notwithstanding any provision of the Plan to  the contrary, a Coronavirus-Affected Participant may elect, in accordance with rules and  procedures established by the Committee, to receive a coronavirus-related distribution from the  Coronavirus-Affected Participant’s vested Account during the period beginning on April 23, 2020  and ending on December 31, 2020.  The following rules shall apply to a coronavirus-related  distribution:  (a) The total amount of all coronavirus-related distributions from the Plan and  any other qualified plan maintained by the Company or any Affiliate shall not exceed the  lesser of:   





 






-34-  (1) One hundred percent (100%) of the Coronavirus-Affected  Participant’s vested Account balance; or   (2) $100,000.   (b) A distribution to a Coronavirus-Affected Participant under this Section 7.6  shall be made in the form of a single sum cash payment.    (c) Any distribution under this Section 7.6 shall be as of the Valuation Date  coincident with or immediately preceding the date of the distribution to the Coronavirus- Affected Participant, and upon such notice as the Committee may require.  (d) A Coronavirus-Affected Participant who receives a coronavirus-related  distribution under this Section 7.6 may recontribute such distribution to the Plan in the  form of a Rollover Contribution, provided that (i) the Coronavirus-Affected Participant is  eligible to make Rollover Contributions to the Plan under Section 3.6, (ii) the coronavirus- related distribution is eligible for tax-free rollover treatment, and (iii) such recontribution  is made during the three (3)-year period commencing on the day after the distribution date.  The total amount the Coronavirus-Affected Participant recontributes to this Plan or any  other eligible retirement plan cannot, in aggregate, exceed the total amount of the  coronavirus-related distribution received under this Section 7.6.   7.7 Qualified Birth or Adoption Distributions. Effective as of April 23, 2020, a  Participant may elect, in accordance with rules and procedures established by the Committee, to  receive a distribution from his or her vested Account at any time during the one (1)-year period  commencing on the date on which any child of the Participant is born or any legal adoption by the  Participant of an eligible adoptee is finalized.  For purposes of this Section 7.7, “eligible adoptee”  means any individual (other than a child of the Participant’s Spouse) who has not attained age 18  or is physically or mentally incapable of self-support.   The total amount of all qualified birth or adoption distributions from the Plan and  any other qualified plan maintained by the Company or any Affiliate shall not exceed the lesser of  (i) $5,000 or (ii) the Participant’s vested Account balance on the Valuation Date coincident with  or immediately preceding the date the distribution is made.   A Participant who receives a qualified birth or adoption distribution under this  Section 7.7 may recontribute such distribution to the Plan in the form of a Rollover Contribution,  provided the Participant is eligible to make Rollover Contributions to the Plan under Section 3.6  and the qualified birth or adoption distribution is eligible for tax-free rollover treatment. The total  amount the Participant recontributes to this Plan or any other eligible retirement plan cannot, in  aggregate, exceed the total amount of the qualified birth or adoption distribution received under  this Section 7.7.  





 






-35-  ARTICLE VIII    DEATH BENEFITS  8.1 Payment of Account Balances. The benefits payable to the Beneficiary of a  Participant who dies shall be the sum of the Participant’s vested Account Balances as of the  Valuation Date coincident with or immediately preceding the date of payment, and shall be payable  within ninety (90) days of the date the Committee is given notice of the Participant’s death;  provided, however, that with respect to distributions on account of the events of September 11,  2001, the Committee shall have received a valid request for distribution from the Beneficiary.  Benefits payable to a Beneficiary under this Article shall be paid in the form of a  single, lump sum distribution.  8.2 Beneficiaries. A Participant shall designate one or more Beneficiaries to whom  amounts due after the Participant’s death shall be paid. In the event a Participant fails to make such  a designation, or in the event that no designated Beneficiary survives the Participant, any amounts  due after the Participant’s death shall be paid to the Participant’s Surviving Spouse or if records  relating to Beneficiary designations are destroyed or lost, or if there is no Surviving Spouse, to the  legal representative of his or her estate. No Beneficiary shall have any right to benefits under the  Plan unless he shall survive the Participant. A Beneficiary may disclaim a benefit in accordance  with Code Section 2518. For purposes of distributing amounts due under Section 8.1 by reason of  the events of September 11, 2001, a Participant shall be treated as having failed to designate a  Beneficiary if, at the time of distribution, no valid Beneficiary designation form has been  presented.  8.3 Qualified Election. If a married Participant designates a Beneficiary other than the  Participant’s Spouse as the Participant’s sole, primary Beneficiary, such designation must be in  writing and consented to by the Participant’s Spouse. The Spouse’s consent to the waiver must be  witnessed by a notary public. Any subsequent change of Beneficiary shall also require such spousal  consent. Notwithstanding this consent requirement, if the Participant establishes to the satisfaction  of the Committee that such written consent cannot be obtained because there is no Spouse or the  Spouse cannot be located, the election will be deemed effective. In addition, if the Spouse is legally  incompetent to give consent, the Spouse’s legal guardian, even if the guardian is the Participant,  may give consent. Also, if a Participant is legally separated or has been abandoned (within the  meaning of the law of the Participant’s residence) and the Participant has a court order to that  effect, spousal consent is not required unless a qualified domestic relations order provides  otherwise. Any consent necessary under this provision will be valid only with respect to the Spouse  who signs the consent, or in the event of a deemed effective election, the designated Spouse.  Additionally, a revocation of a prior waiver may be made by the Participant without the consent  of the Spouse at any time before the commencement of benefits. The number of revocations shall  not be limited.  





 






-36-  ARTICLE IX    FIDUCIARIES  9.1 Named Fiduciaries. The Committee shall be a “named Fiduciary” of the Plan, as  that term is defined in ERISA Section 402(a)(2), with authority to control and manage the  operation and administration of the Plan, including the authority to manage and control Plan assets  in the manner and to the extent set forth in the Plan, and to direct the investment of assets in the  Trust and to select Investment Funds and Investment Managers, except to the extent such authority  is allocated under the Plan or delegated to an Investment Manager, an insurance company or to the  Participants. The Committee shall also be the “administrator” and “plan administrator” with  respect to the Plan, as those terms are defined in ERISA Section 3(16)(A) and in Code Section  414(g), respectively.  The Trustee shall be a “named fiduciary” of the Plan, as that term is defined in  ERISA Section 402(a)(2), with authority to manage and control all Trust assets, except to the  extent such authority is allocated under the Plan to the Committee or is delegated to an Investment  Manager, an insurance company, or the Plan Participants at the direction of the Committee.  The Committee and the Trustee are the only named fiduciaries of the Plan.  9.2 Employment of Advisers. A named fiduciary, and any fiduciary appointed by a  named fiduciary, may employ one or more persons to render advice with regard to any  responsibility of such named fiduciary or other fiduciary under the Plan.  9.3 Multiple Fiduciary Capacities. Any named fiduciary and any other fiduciary may  serve in more than one fiduciary capacity with respect to the Plan.  9.4 Payment of Expenses. Subject to applicable fiduciary requirements, all Plan  expenses, including, but not limited to, expenses of the Committee, the Trustee, any Investment  Manager and any insurance company shall be paid by the Trust Fund, provided, however, that the  Company may direct an Employer to pay any of such expenses. The Committee may elect that all  transactional costs or charges imposed or incurred (if any) for an Investment Fund shall be charged  to the Account of the Participant directing such investment. Transactional costs and charges shall  include, but shall not be limited to, charges for the acquisition, sale or exchange of assets,  brokerage commissions, service charges and professional fees.  9.5 Indemnification. To the extent not prohibited by state or federal law, the Company  or an Affiliate, by the adoption of this Plan or by becoming an Employer therein, agrees to, and  shall, indemnify and save harmless any named fiduciary (other than a third-party Trustee) or any  other Employee, officer or director of the Company or an Affiliate, from all claims for liability,  loss or damage (including payment of expenses in connection with defense against any such claim)  that result from any exercise or failure to exercise any responsibilities with respect to the Plan,  other than willful misconduct or willful failure to act. The rights of indemnification provided  hereunder shall be in addition to any right to which any person concerned may otherwise be entitled  by contract or as a matter of law, and shall inure to the benefit of the heirs, executors and  administrators of any such person.  





 






-37-  ARTICLE X    PLAN ADMINISTRATION  10.1 The Committee. The Committee shall be initially appointed by the Company and  may be removed by the Company. Any member of the Committee who is an Employee of the  Company or an Affiliate at the time of his appointment will be considered to have resigned from  the 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 Committee.  (a) The 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 (3) members are appointed, the Committee shall act only upon  the unanimous consent of its members. The 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 Committee shall deliver  to such interested person a written revocation of such authorization.  (b) A member of the Committee who is also a Participant shall not vote or act  upon any matter relating to himself.  10.2 Powers and Duties of the Committee.   (a) Administrative Powers and Duties.    (1) The Committee shall have the full discretion and power to construe  the Plan and to determine all questions of fact or law or mixed questions of fact and  law or interpretation that may arise thereunder as well as the full discretion and  power to construe the summary plan description under the Plan, and any such  construction or determination shall be conclusively binding upon all persons  interested in the Plan. Benefits shall be payable under the Plan only if the  Committee decides in its discretion that the claimant is entitled to them.  (2) The Committee shall have the power to promulgate such rules and  procedures, to maintain or cause to be maintained such records and to issue such  forms as it shall deem necessary and proper for the administration of the Plan.  (3) Subject to the terms of the Plan, the Committee shall determine the  time and manner in which all elections authorized by the Plan shall be made or  revoked.  (b) Investment Powers and Duties.   (1) The Committee shall have the power to make and deal with any  investment of the Trust in any manner consistent with the Plan that it deems  advisable, except assets, if any, subject to the direction and control of Participants  as described in Section 10.3 or as otherwise provided in the Plan.  





 






-38-  (2) The Committee shall establish and carry out a funding policy and  method consistent with the objectives of the Plan and the requirements of ERISA.  (3) The Committee shall have the power to select annuity contract  providers.  (4) The Committee shall have the power to direct that assets of the Trust  be held in a master trust consisting of assets of plans maintained by the Company  or an Affiliate that are qualified under Code Section 401(a).  (c) Other Powers and Duties.  (1) The Committee shall have all the rights, powers, duties and  obligations granted or imposed upon it elsewhere in the Plan.  (2) The Committee shall exercise all of its responsibilities in a uniform  and nondiscriminatory manner.  10.3 Investment of Accounts.  (a) The Committee has directed the Trustee to establish Investment Funds for  the investment and reinvestment of Plan assets. A Participant may direct the investment of  his or her Accounts, subject to the terms of this Section 10.3 and Section 10.4. The  Committee may establish additional Investment Funds or remove an Investment Fund from  the Plan from time to time in its sole discretion.  (b) The Company and BGC have, in their capacity as settlors of the Plan,  directed the Trustee to establish and maintain an Investment Fund (the “BGC Fund”) that  invests primarily in shares of Class A common stock of BGC (“BGC Stock”).  (c) A Participant who is employed by, or a terminated Participant who is a  former employee of, BGC (but, effective November 30, 2018, is not an employee of  Newmark Group, Inc. (“Newmark”) or one of Newmark subsidiaries) or another Employer  that has, with the consent of the Board of Directors of BGC (the “BGC Board”), agreed to  offer the BGC Fund to its Employees (a “BGC Fund Employer”), may direct the investment  of such Participant’s Account and the investment of future Salary Reduction Contributions,  Roth Contributions, After-Tax Contributions, Rollover Contributions and Matching  Contributions, if applicable, into and out of the BGC Fund pursuant to Section 10.4. As of  the date a Participant becomes an Employee of an Employer that is not a BGC Fund  Employer, such Participant may no longer direct the investment allocation of such  Employee’s Account and the investment allocation of future contributions into the BGC  Fund.  (d) The Committee will designate a fiduciary for ensuring that (i) procedures  are maintained by the Plan to safeguard the confidentiality of information relating to the  purchase, holding and sale of BGC Stock and the exercise of voting, tender and similar  rights with respect to BGC Stock by Participants, (ii) the procedures described in (i) above  are sufficient to maintain confidentiality, except to the extent necessary to comply with  





 






-39-  federal law or state laws not preempted by ERISA, and (iii) an independent fiduciary is  appointed, if and to the extent necessary to satisfy applicable governmental regulations, to  carry out activities relating to any situation involving a potential for undue influence upon  Participants, with regard to the direct or indirect exercise of shareholder rights.  (e) At the time of distribution pursuant to Article V, a Participant may elect to  receive the BGC Stock attributable to such Participant’s investment in the BGC Fund either  in BGC Stock or in cash.  (f) Notwithstanding anything contained in the Plan to the contrary, the  Committee may establish procedures which prevent Salary Reduction Contributions, Roth  Contributions, After-Tax Contributions or Account Balances from being directed into or  out of the BGC Fund as may be necessary to ensure compliance with applicable laws,  including Federal securities laws.  (g) Effective November 30, 2018, Newmark spun off from BGC.  Treatment of  the BGC Fund and Participants who are employees on and after November 30, 2018 is  addressed in Appendix B.  10.4 Individual Investment Funds. Each Participant, upon commencing or  recommencing active participation under Section 3.3 or 3.5, shall, at the time and in the manner  prescribed by the Committee, direct the investment of contributions made on his behalf in any one  or more of the available Investment Funds, in whole dollar or whole percentage increments, subject  to such limitations as the Committee may prescribe. Investment directions provided by the  Participant shall remain in force until changed or revoked by the Participant issuing such direction.  (a) Each Participant may change his investment direction with respect to the  investment of his future contributions at the time or times prescribed by the Committee, by  making a new election in the manner prescribed by the Committee, at such time in advance,  and in accordance with other procedures and subject to such restrictions as the Committee  or its delegate may prescribe.  (b) Each Participant or Beneficiary of a deceased Participant may elect to  transfer all or a portion of his interest in any Investment Fund to any other available  Investment Fund at the time or times prescribed by the Committee, by making a transfer  election in the manner prescribed by the Committee, at such time in advance, and in  accordance with other procedures and subject to such restrictions as the Committee or its  delegate may prescribe.  (c) The Plan is intended to constitute a plan described in ERISA Section 404(c)  and Department of Labor Regulation Section 2550.404(c)-1. The Trustee, the Company,  the Committee, and any other fiduciary of the Plan are relieved of liability for losses which  are the direct and necessary result of investment instructions given by a Participant or  Beneficiary.  (d) If the Participant fails to direct one hundred percent (100%) of his or her  contributions or a transfer of his Accounts to an Investment Fund, the balance not directed  shall be invested in such Investment Fund as the Committee determines deems to be the  





 






-40-  most conservative or in such other Investment Fund that the Committee determines to be a  qualified default investment alternative pursuant to Department of Labor Regulations or  other guidance.  10.5 Valuation of Accounts. The Trustee shall value the Trust Fund and each  Investment Fund at fair market value as of each Valuation Date. The Accounts of each Participant  shall then be adjusted by apportioning the Investment Fund, including income, as thus revalue,  among Participants’ Accounts in proportion to the value of their respective interests in the  Investment Fund immediately preceding such revaluation. The “adjusted net worth” of an  Investment Fund as of any Valuation Date means the net worth of that Investment Fund as  determined by the Trustee in accordance with the provisions of the Trust Agreement,  10.6 Compensation. The Trustee and any Investment Manager or insurance company  shall be paid such reasonable compensation, in addition to its expenses, as shall from time to time  be agreed upon between the Company’s Board of Directors and the Trustee, Investment Manager  or insurance company; provided, however, that no such compensation shall be paid to any person  who is an Employee.  10.7 Delegation of Responsibility. The Committee may designate persons, including  persons other than named fiduciaries, to carry out the specified responsibilities of the Committee  and, except as otherwise provided by applicable law, shall not be liable for any act or omission of  a person so designated.  10.8 Investment Manager. The Committee may, by an instrument in writing, appoint  one or more persons as an Investment Manager and may, subject to any restrictions upon  investment imposed upon the Committee in respect of investments by ERISA or by any Treasury  Regulation relating to the qualified status of the Trust as tax exempt, delegate to an Investment  Manager from time to time the power to manage and control, or to direct the Committee to manage  and control, the investment of any Plan asset. Each person so appointed shall be (i) an investment  adviser registered under the Investment Advisers Act of 1940 (“Investment Advisers Act”), (ii) if  not registered as an investment advisor under the Investment Advisers Act, by reason of paragraph  (1) of Section 203A(a) of the Investment Advisers Act, is registered as an investment adviser under  the laws of the state, referred to in such paragraph (1), in which it maintains its principal office  and place of business, and at the time the fiduciary has filed the registration form most recently  filed by the fiduciary with such state in order to maintain the fiduciary’s registration under the laws  of such State, also filed a copy of such form with the Secretary of Labor; (iii) a bank as defined in  that Act, or (iv) an insurance company qualified to manage, acquire or dispose of any asset of the  Plan under the laws of more than one state.  (a) Each Investment Manager shall acknowledge in writing that it is a fiduciary  with respect to the Plan. The Committee shall enter into an agreement with each Investment  Manager specifying the duties and compensation of such Investment Manager and the other  terms and conditions under which such Investment Manager shall be retained. The  Committee shall not 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.  





 






-41-  (b) The 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.  ARTICLE XI    APPOINTMENT OF TRUSTEE  11.1 Trustee. The Company shall appoint the Trustee, and may remove the Trustee. The  Trustee shall accept its appointment by executing the Trust Agreement.  (a) A Trustee shall be subject to direction by the Committee or an Investment  Manager or shall have such discretion with respect to management and control of Plan  assets as specified by the Committee and as set forth in the Trust Agreement. Neither the  Committee or any other Plan fiduciary shall be liable for any act or omission of any Trustee  with respect to any duties delegated to any Trustee.  (b) A Trustee who is also a Participant shall not vote or act upon any matter  relating to himself.  ARTICLE XII    PLAN AMENDMENT OR TERMINATION  12.1 Plan Amendment or Termination. The Company’s governing board (or, to the  extent permitted by resolution of such governing board, a duly authorized officer of the Company)  shall have the right at any time, and from lime to lime, to amend the Plan, by an instrument in  writing, effective retroactively or otherwise. No such amendment shall have any of the effects  specified in Section 12.2.  Notwithstanding the foregoing, the Company’s governing board (or, to the extent  permitted by resolution of such governing board, a duly authorized officer of the Company) may  not amend any provision of the Plan concerning the Plan’s investment in the BGC Fund or the  purchase of BGC Stock by the Plan without the written consent of the Board of Directors of BGC  (or such committee of the Board of Directors of BGC as it may designate).  12.2 Limitations on Plan Amendment. No Plan amendment shall:  (a) authorize any part of the Trust Fund to be used for, or diverted to, purposes  other than for the exclusive benefit of Participants or their Beneficiaries or defraying the  reasonable expenses of administering the Plan;  (b) decrease the accrued benefits of any Participant or his or her Beneficiary  under the Plan;  (c) reduce the vested percentage of any Participant;  





 






-42-  (d) change the vesting schedule, unless each Participant having not less than  three (3) Years of Service is permitted to elect, within a reasonable period specified by the  Committee after the adoption of such amendment, to have his or her vested percentage  computed without regard to such amendment; or  (e) eliminate or reduce an early retirement benefit or retirement-type subsidy  (as defined in Code Section 411) or an optional form of benefit with respect to service prior  to such amendment, except to the extent permitted by law.  The period during which the election under Section 12.2(d) may be made shall commence with  the date the amendment is adopted and shall end as of the later of: (1) sixty (60) days after the  amendment is adopted; (2) sixty (60) days after the amendment becomes effective; or (3) sixty  (60) days after the Participant is issued written notice by the Committee.    Notwithstanding any provision of the Plan to the contrary, any optional form of benefit, vesting  schedule or other benefit right or feature that may not be reduced or eliminated pursuant to Code  Section 411(d)(6) and the Treasury Regulations and other guidance issued thereunder, including  any such protected benefit in any plan is merged into the Plan, shall continue to be available in the  Plan (but only to the extent required by law).  12.3 Right of the Company to Terminate Plan or Discontinue Contributions. The  Company intends to continue this Plan in effect and to make contributions as herein provided.  However, the Company reserves the right to terminate the Plan with respect to its Employees at  any time by an instrument in writing delivered to the Committee and the Trustee, or to completely  discontinue its contributions thereto at any time.  12.4 Effect of Partial or Complete Termination or Complete Discontinuance of  Contributions. As of the date of a partial termination of the Plan no further contributions or  allocations of forfeitures shall he made after such date with respect to each affected Participant.  (a) As of the date of the complete termination of the Plan, or the complete  discontinuance of contributions under the Plan:  (1) each Participant who is then an Employee shall become one hundred  percent (100%) vested in his or her Accounts;  (2) no further contributions or allocations of forfeitures shall be made  after such date; and  (3) no Eligible Employee shall become a Participant after such date.  (b) All other provisions of the Plan shall remain in effect unless otherwise  amended.  12.5 Bankruptcy. In the event the Company shall at any time be judicially declared  bankrupt or insolvent without any provisions being made for the continuation of this Plan, the Plan  shall be completely terminated in accordance with Section 12.3.  





 






-43-  ARTICLE XIII    TOP-HEAVY PROVISIONS  13.1 Top-Heavy Plan.  (a) For each Participant who is not a Key Employee (whether or not a former  Key Employee), who is employed by an Employer on the last day of the Plan Year and  who participates in the Plan, the contribution for that Participant to that plan will satisfy  the minimum Top-Heavy contribution. The minimum contribution is described in  paragraph (b) of this Section 13.1.  (b) The minimum contribution is three percent (3%) of the Participant’s  Compensation for the Plan Year, or if less, the highest percentage at which such  contributions arc made under the Plan for the Plan Year on behalf of a Key Employee. For  purposes of this paragraph (b), all defined contribution plans required to be included in the  Aggregation Group are treated as one Plan and Participant deferrals are included in the  Compensation of Key Employees. In calculating the minimum contribution, any  Participant deferral and any contributions or benefits under Chapter 21 of the Code  (relating to the Federal Insurance Contributions Act), Title II of the Social Security Act, or  any other Federal or state law are not counted toward the minimum contribution. Allocated  forfeitures will be taken into account for purposes of providing the minimum contribution  required by this paragraph (b) on behalf of each Participant who is not a Key Employee.  13.2 Top-Heavy Determination.  (a) If the Plan is not required to be included in an Aggregation Group with other  plans, then it is Top-Heavy only if, when considered by itself, it is a Top-Heavy Plan and  it is not included in a permissive Aggregation Group that is not a Top-Heavy Group.  (b) If the Plan is required to be included in an Aggregation Group with other  plans, it is Top-Heavy only if the Aggregation Group, including any permissively  aggregated plans, is Top-Heavy.  (c) If the Plan is not Top-Heavy and is not required to be included in an  Aggregation Group, then it is not Top-Heavy even if it is permissively aggregated in an  Aggregation Group that is a Top-Heavy Group.  13.3 Calculation of Top-Heavy Ratios.  For any Plan Year, the Plan is Top-Heavy and an Aggregation Group is a Top-  Heavy Group if, as of the Determination Date, the sum of the Cumulative Accrued Benefits and  the Cumulative Accounts of Employees who are Key Employees for the Plan Year exceeds sixty  percent (60%) of a similar sum determined for all Employees, excluding former Key Employees.  13.4 Cumulative Accounts.  





 






-44-  (a) Cumulative Account means the sum of the amount of a Participant’s  accounts under the Plan or under all defined contribution plans included in an Aggregation  Group (for aggregated plans) determined as of the Determination Date, increased by any  contributions due before the Determination Date.  (b) Cumulative Accrued Benefit means the sum of the present value of a  Participant’s accrued benefits under a defined benefit plan (for an unaggregated plan) or  under all defined benefit plans included in an Aggregation Group (for aggregated plans),  determined under the actuarial assumptions set forth in that plan or plans, as of the most  recent plan valuation date within a 12-month period ending on the Determination Date as  if the Participant voluntarily terminated service as of such valuation date.  (c) Accounts and benefits are calculated by including all amounts attributable  to both Employer and Employee contributions.  (d) Accounts and benefits are increased by the aggregate distributions during  the one-year period ending on the Determination Date made with respect to a Participant  under the plan or plans as the case may be, or under a terminated plan that if it had not been  terminated, would have been required to be included in the Aggregation Group, In the case  of a distribution made for a reason other than a severance from employment, death or  disability, this paragraph (d) shall be applied by substituting “five (5)-year period” for “one  (1)-year period.”  13.5 Additional Definitions.  For purposes of this Article XIII, the following definitions apply:  (a) Aggregation Group means a plan or group of plans that includes all plans  maintained by any Participating Company in which a Key Employee is a Participant or that  enables any plan in which a Key Employee is a Participant to meet the requirements of  Code Section 401(a)(4) or Section 410, as well as all other plans selected by any Employer  for permissive aggregation, the inclusion of which would not prevent the group of plans  from continuing to meet the requirements of those sections.  (b) Compensation means compensation within the meaning of Code Section  415(c)(3), including any elective deferral (as defined in Code Section 402(g)(3)) and any  amount that is contributed or deferred by an Employer at the election of the Employee and  that is not includible in the gross income of the Employee by reason of Code Section 125,  132(f)(4) or 457.  The annual Compensation of each Employee taken into account under the  Plan for any Plan Year may not exceed the limitation set forth in Code Section 401(a)(17).  If a Plan Year is shorter than 12 months, the Code Section 401(a)(17) limitation will be  multiplied by a fraction, the numerator of which is the number of months in the Plan Year  and the denominator of which is twelve.  (c) Determination Date means the last day of the preceding Plan Year, or for  the first Plan Year of the Plan, the first day of that Plan Year.  





 






-45-  (d) Employer means any corporation which contributes to this Plan and any  member of a controlled group or group of trades or businesses under common control (as  defined in Code Section 414(b) or (c)) or any member of an affiliated service group (as  defined in Code Section 414(m)) to which any Participating Company belongs.  (e) Key Employee means any Employee or former Employee (including a  deceased Employee) if, during the Plan Year in question he or she is or was:  (1) an officer of any Employer having annual Compensation greater  than $185,000 (as adjusted under Code Section 416(i)(l));  (2) a five percent (5%) owner (as described in Code Section  416(i)(2)(B)(i)) of any Employer; or  (3) a one percent (1%) owner (as described in Code Section  416(i)(l)(B)(ii)) of any Employer having annual Compensation of more than  $150,000.  For purposes of clause (1), employees described in Section Code 414(q)(8) are  excluded and no more than 50 (or if less, the greater of three) or ten percent (10%) of the  employees are treated as officers. The term Key Employee includes a beneficiary of a Key  Employee.  The determination period is the Plan Year containing the Determination Date and  the four preceding Plan Years. The determination of who is a Key Employee will be made  in accordance with Code Section 416(i)(l) and the Treasury Regulations issued thereunder.  13.6 Discontinuance of Article. In the event that any provisions of this Article are no  longer required to qualify the Plan under the Code, then such provisions shall thereupon be void  without the necessity of further amendment of the Plan.  ARTICLE XIV    MISCELLANEOUS PROVISIONS  14.1 Exclusive Benefit of Participants. Notwithstanding anything in the Plan to the  contrary, it shall be prohibited at any time for any part of the Trust Fund (other than such part as  is required to pay expenses) to be used for, or diverted to, purposes other than for the exclusive  benefit of Participants or their Beneficiaries, except that, upon the direction of the Committee:  (a) Any contribution made by an Employer by a mistake of fact shall be  returned within one (1) year after the payment of the contribution;  (b) Any contribution made by an Employer shall be returned within one year  after the denial of initial qualification of the Plan under Code Section 401(a); and  (c) Any contribution made by an Employer shall be returned to the extent  disallowed as a deduction under Code Section 404 within one (1) year after the  





 






-46-  disallowance of the deduction. With respect to Section 14.1(a) and 14.1(c), the amounts  recovered shall be reduced by the amount of any losses attributable thereto, but shall not  be increased by the amount of any earnings attributable thereto.  14.2 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.  14.3 Source of Benefits. Benefits under the Plan shall be paid or provided for solely  from the Trust, and the Employers assume no liability therefor.  14.4 Benefits Not Assignable. Benefits provided under the Plan may not, to the extent  permissible by law be assigned or alienated either voluntarily or involuntarily, but nothing  contained herein shall preclude a Participant’s pledging his or her Salary Reduction Account as  security for a loan. The preceding shall also 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,  unless such order is determined to be a qualified domestic relations order, as defined in Code  Section 414(p), or any domestic relations order entered before January 1, 1985.  Any other provisions of the Plan to the contrary notwithstanding, the 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 (or domestic relations orders treated as  such). With respect to any qualified domestic relations order relating to the Plan, the Committee  shall permit distribution to an alternate payee under such order at any time, irrespective of whether  the Participant has attained his or her “earliest retirement age” (within the meaning of Code Section  414(p)(4)(B)) under the Plan, if the qualified domestic relations order authorizes such a  distribution.  Notwithstanding the foregoing, a Participant’s benefits under the Plan shall be  offset against an amount that the Participant is ordered or required to pay to the Plan if:  (a) the order or requirement to pay arises (1) under a judgment of conviction  for a crime involving the Plan, (2) under a civil judgment (including a consent order or  decree) entered by a court in an action brought in connection with a violation (or alleged  violation) of part 4 of subtitle B of title I of ERISA, or (3) pursuant to a settlement  agreement between the Participant and cither the Secretary of Labor or the Pension Benefit  Guaranty Corporation, in connection with a violation (or alleged violation) of part 4 of  subtitle B of title I of ERISA by a fiduciary or any other person;  (b) the judgment, order, decree or settlement agreement is entered into, on or  after August 5, 1997; and  (c) the judgment, order, decree or settlement agreement expressly provides for  the offset of all or part of the amount ordered or required to be paid to the Plan against the  Participant’s benefits provided under the Plan.  14.5 Claims Procedure. A claim for a Plan benefit shall be deemed filed when the  Committee receives a written communication made by a Participant or Beneficiary, or the  





 






-47-  authorized representative of cither (the “claimant”). If the Committee wholly or partially denies a  claim, the Committee shall give written notice of such denial to the claimant within 90 days (45  days for claims related to determinations of Disability by Former Newmark Plan Participants and  Former ELX Plan Participants, as defined in Appendix A) after the Committee receives the claim,  provided that if there are special circumstances, the Committee may extend the period for up to 90  additional days if written notice of the extension is provided to the claimant prior to the expiration  of the initial 90-day period. Notwithstanding the foregoing, for claims related to determinations of  Disability by Former Newmark Plan Participants and Former ELX Plan Participants, the  Committee may extend the initial 45-day period twice, by 30 days each time, if the Committee  determines that each extension is necessary due to matters beyond the Plan’s control and the  Committee notifies the claimant of such circumstances and the date by which the Committee  expects to render a decision in advance of the expiration of the period.  In the case of any extension  for claims related to determinations of Disability by Former Newmark Plan Participants and  Former ELX Plan Participants, the notice of extension shall specifically explain the standards on  which entitlement to a benefit is based, the unresolved issues that prevent a decision on the claim,  and the additional information needed to resolve those issues, and the claimant shall be afforded  at least 45 days within which to provide the specified information.  Any notice of claim denial shall set forth, in a manner calculated to be understood  by the claimant: (1) the specific reason or reasons for the denial; (2) specific reference to pertinent  Plan provisions on which the denial is based; (3) a description of any additional material or  information necessary to perfect the claim and an explanation of why such material or information  is necessary; and (4) an explanation of the Plan’s claim review procedure; and (5) a statement  advising such Participant or Beneficiary of his or her right to bring a civil action under ERISA  Section 502(a) following a denial of claim and that he or she is entitled to receive, upon request  and free of charge, reasonable access to copies of all documents, records and other information  relevant to the claim.  For claims related to determinations of Disability by Former Newmark Plan  Participants and Former ELX Plan Participants, if the denial is based on a lack of medical necessity  or because of an experimental, investigational, or unproven treatment or similar exclusion, the  notice of claim denial shall also set forth an explanation of the scientific or clinical judgment for  the claim determination, applying the terms of the Plan to the claimant’s circumstances (or a  statement that an explanation shall be provided free of charge upon request). For claims related to  determinations of Disability under the Plan filed by Former Newmark Plan Participants and  Former ELX Plan Participants on or after April 2, 2018 (“New Disability Claims”), such notice  shall also include:  (i) a statement that, upon request and free of charge, the claimant shall be  provided reasonable access to, and copies of, all documents, records, and other information  relevant to the claimant’s claim; (ii) either the specific internal rules, guidelines, protocols,  standards, or other similar criteria relied upon in making the claim determination, or a statement  that such rules, guidelines, protocols, standards, or similar criteria do not exist; and (iii) if  applicable, a discussion of the decision, including the basis for disagreeing with or not following  (A) the views of health care professionals treating the Participant and vocational professionals who  evaluated the Participant that were provided by the claimant, (B) the views of medical or vocational  experts whose advice was obtained on behalf of the Plan in connection with the claim denial,  without regard to whether the advice was relied upon in making the denial, and (C) a disability  determination regarding the Participant made by the Social Security Administration if provided by  the claimant  





 






-48-  Within 90 days (180 days for claims related to determinations of Disability by  Former Newmark Plan Participants and Former ELX Plan Participants) from the receipt of the  notice of denial, a claimant may appeal such denial to the Committee for a full and fair review.  The review shall be instituted by the filing of a written request for review by the claimant or his or  her authorized representative within the applicable period stated above. A request for review shall  be deemed filed as of the date the Committee receives such written request. The claimant or his or  her authorized representative shall have the right to review all pertinent documents, may submit  issues and comments in writing and may do such other appropriate things as the Committee may  allow. The Committee shall consider all comments, documents, and other information submitted  by the Participant or Beneficiary, without regard to whether such information was submitted or  considered in the initial determination. The Committee shall make its decision on the appealed  claim not later than 60 days (45 days for claims related to determinations of Disability by Former  Newmark Plan Participants and Former ELX Plan Participants) after it receives the request for  review; unless special circumstances, such as the need to hold a hearing, require an extension of  time, in which case, the Committee shall render a decision not later than 120 days (90 days for  claims related to determinations of Disability by Former Newmark Plan Participants and Former  ELX Plan Participants) after it receives a request for review, which decision shall be final and  binding on such claimant. The Committee will notify the Participant or Beneficiary of the need  and reasons for the extension prior to the expiration of the 60-day period (the 45-day period for  claims related to determinations of Disability by Former Newmark Plan Participants and Former  ELX Plan Participants).  The decision on review shall set forth specific reasons for the decision, shall be  written in a manner calculated to be understood by the claimant containing the following  information: the specific reason(s) for the denial; a specific reference to pertinent Plan provisions  on which the denial is based; a statement that the claimant is entitled to receive, upon request and  free of charge, reasonable access to and copies of all documents and other information relevant to  the claim; and a statement of the claimant’s right to bring suit under ERISA Section 502(a)  (including for New Disability Claims, the applicable time limits for doing so and the calendar date  on which the time limit expires); and, for claims related to determinations of Disability by Former  Newmark Plan Participants and Former ELX Plan Participants, if the denial is based on a lack of  medical necessity or because of an experimental, investigational, or unproven treatment or similar  exclusion, an explanation of the scientific or clinical judgment for the adverse benefit  determination, applying the terms of the Plan to the claimant’s circumstances (or a statement that  an explanation shall be provided free of charge upon request). For New Disability Claims, such  notice shall also include:  (i) either the specific internal rules, guidelines, protocols, standards, or  other similar criteria relied upon in making the benefits determination, or a statement that such  rules, guidelines, protocols, standards, or similar criteria do not exist; and (ii) if applicable, a  discussion of the decision, including the basis for disagreeing with or not following (A) the views  of health care professionals treating the Participant and vocation professionals who evaluated the  Participant that were provided by the claimant, (B) the views of medical or vocational experts  whose advice was obtained on behalf of the Plan in connection with the claim denial, without  regard to whether the advice was relied upon in making the denial, and (C) a disability  determination regarding the Participant made by the Social Security Administration if provided by  the claimant.  





 






-49-  For claims related to determinations of Disability by Former Newmark Plan  Participants and Former ELX Plan Participants, the following rules shall also apply: (i) the claim  review shall be made by a person different from the person who made the initial determination,  and such person will not be the original decision-maker’s subordinate or afford deference to the  initial claim denial; (ii) in the case of a claim denied on the grounds of a medical judgment, the  Plan administrator will consult with a health care professional with appropriate training and  experience; (iii) the health care professional who is consulted on appeal shall not be the individual  who was consulted during the initial determination or a subordinate of such person; (iv) if the  advice of a medical or vocational expert was obtained by the Plan in connection with the denial of  a claim, the Committee shall provide the claimant with the names of each such expert, regardless  of whether the advice was relied upon.  Effective for New Disability Claims, before the Committee  may issue a denial on appeal, the Committee will provide the claimant, free of charge, with any  new or additional evidence that was considered, relied upon, or generated in connection with the  claim.  Before the Committee may issue a denial on appeal based on such new or additional  rationale, the Committee will provide the claimant, free of charge, with such rationale.  The  Committee will provide such evidence or rationale, as applicable, as soon as possible and  sufficiently in advance of the date by which a response to the claimant’s appeal must be provided  (as described above) in order to provide the claimant with a reasonable opportunity to respond  prior to that date.  Upon exhausting the claims procedure herein, a Participant has the right to bring a  civil action in federal court challenging the final decision of the Committee related to such  Participant’s claim for a Plan benefit. Any civil action brought in federal court must be filed by no  later than one year after the date listed on the latest notice that such Participant received stating  that his or her claim for benefits under the Plan was denied by the Committee.  These claims procedures will be administered and interpreted in a manner  consistent with the requirements of ERISA Section 503 and the Department of Labor Regulations  thereunder. Any electronic notices provided by the Committee will comply with these regulations.  All claims determinations made by the Committee will be made in accordance with the provisions  of this Article 11, and will be applied consistently to similarly situated claimants. The Committee  will ensure that all claims and appeals are adjudicated in a manner designed to ensure the  independence and impartiality of the persons involved in making the decision.  14.6 Income Tax Withholding. The Committee may direct that such amounts be  withheld from any payment due under this Plan as required to conform with applicable income tax  law.  14.7 Benefits Payable to Minors, Incompetents and Others. In the event any benefit  is payable to a minor or an incompetent or to a person otherwise under a legal disability, or who,  in the sole discretion of the 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 Committee believes that he could not utilize the benefit for his  or her support or welfare, the 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 pay the whole or any part of such benefit to the parent of such person, the guardian, committee,  conservator or other legal representative, wherever appointed, of such person, the person with  





 






-50-  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.  14.8 Merger or Transfer of Assets. The merger or consolidation of an Employer with  any other person, or the transfer of the assets of an Employer to any other person, or the merger of  the Plan with any other plan shall not constitute a termination of the Plan.  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 that is equal to or greater than the benefit  he would have been entitled to receive immediately before the merger, consolidation or transfer  (if the Plan had then terminated). Subject to the foregoing, the Company reserves the right at any  time and from time to time to merge or consolidate the Plan with, or to transfer any assets or  liabilities to, or accept a transfer of any assets or liabilities from, any other plan.  14.9 Missing Participants / Uncashed Checks.  Each Participant, Spouse, and  Beneficiary must file with the Committee from time to time in writing the Participant’s, Spouse’s,  or Beneficiary’s post office address and each change of post office address.  Any communication,  statement, or notice addressed to a Participant, Spouse, or Beneficiary at the last post office address  filed with the Committee, or if no address is filed with the Committee, then in the case of a  Participant, at the Participant’s last post office address as shown on the Employers’ records, shall  be considered a notification for purposes of the Plan and shall be binding on the Participant and  the Participant’s Spouse and Beneficiary for all purposes of the Plan.  If the Committee notifies a  Participant, Spouse, or Beneficiary of the provisions of this Section 14.9, and the Participant,  Spouse, or Beneficiary fails to claim the Participant’s, Spouse’s, or Beneficiary’s benefits or make  such person’s whereabouts known to the Committee, the Committee will make reasonable efforts  to locate the Participant, Spouse, or Beneficiary.  Such measures may include:  (a) Searching Plan and related plan, Employer, and publicly-available records  or directories for alternative contact information;   (b) Utilizing a commercial locator service, credit reporting agency, or  proprietary internet search service;   (c) Attempting contact with the Participant, Spouse, or Beneficiary via email  and/or telephone; and   (d) Sending a registered letter, return receipt requested to the last known  address of such Participant, Spouse, or Beneficiary.  If, within (i) five (5) years after a benefit becomes payable or (ii) six (6) months  after the Employer or Committee has made such reasonable efforts to locate the Participant,  Spouse, or Beneficiary as described above, the Participant, Spouse, or Beneficiary has not been  located or made their whereabouts known, the benefits of the Participant, Spouse, or Beneficiary  may be disposed of, to the extent permitted by applicable law, by one or more of the following  methods:  





 






-51-  (e) By retaining such benefits in the Plan;  (f) By paying such benefits to a court of competent jurisdiction for judicial  determination of the right thereto;  (g) By forfeiting such benefits in accordance with procedures established by  the Committee.  If a Participant, Spouse, or Beneficiary is subsequently located, such  benefits shall be restored to the Participant, Spouse, or Beneficiary under the Plan; or  (h) By any equitable manner permitted by law under rules adopted by the  Committee.  Checks that are not cashed, deposited, or otherwise negotiated shall be handled  (including the forfeiture and reinstatement of such amounts) in accordance with rules and  procedures established by the Committee, including those rules and procedures described above.   This Section 14.9 shall also apply to an alternate payee under a qualified domestic relations order.  14.10 Participation in the Plan by an Affiliate. With the consent of the Company, any  Affiliate, may become an Employer under, the Plan. Such Affiliate shall determine the classes of  its Employees who shall be Eligible Employees and the amount of its contribution to the Plan, if  any, on behalf of such Employees.  (a) With the consent of the Company, an Employer, by appropriate action, may  terminate its participation in the Plan.  (b) With the consent of the Company, an Employer, by appropriate action, may  withdraw from the Plan and the Trust. Such withdrawal shall be deemed an adoption by  such Employer of a plan and trust identical to the Plan and the Trust, except that all  references to the Company shall be deemed to refer to such Employer. At such time and in  such manner as the Committee directs, the assets of the Trust allocable to Employees of  such Employer shall be transferred to the trust deemed adopted by such Employer.  (c) An Employer shall have no power with respect to the Plan except as  specifically provided herein.  (d) Effective January 1, 2006, the Company’s Board of Directors consented to  the adoption of the Plan by Maxcor Financial Group, Inc. (“Maxcor”). Notwithstanding  any provisions of the Plan to the contrary, any Employee of Maxcor or its subsidiaries shall  be immediately eligible to participate in the Plan of such Employee would otherwise be  eligible to participate in the Plan but for not having reached age 21.  14.11 Gender and Number. As used in this Plan, masculine pronouns shall include the  feminine or vice versa, singular pronouns shall include the plural or vice versa and any reference  to an Article, Section or Paragraph shall mean the Article, Section or Paragraph so delineated in  this Plan.  





 






-52-  14.12 Headings. The headings or articles are included solely for convenience of  reference, and if there is any conflict between such headings and the text of this Plan, the text shall  control.  14.13 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. If any Plan provision is  subject to more than one construction, the ambiguity will be resolved in favor of that interpretation  or construction that is consistent with that intent. Similarly, in the event of any conflict between  any provisions of the Plan or between any Plan provision and Beneficiary designation form or  other form submitted to the Committee, the Plan provisions necessary to retain qualified status  under Code Section 401(a) shall govern. Otherwise, to the extent not preempted by ERISA or as  expressly provided herein, the laws of the State of New York (other than its conflict of laws  provisions) shall control the interpretation and performance of the terms of the Plan.  14.14 Conditional Adoption. Anything in the foregoing to the contrary notwithstanding,  the Plan has been adopted on the express condition that it will be considered by the Internal  Revenue Service as qualifying under the provisions of Code Section 401(a) and the Trust  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 initially, the Plan shall be amended or  terminated as decided by the Company, provided, however, that notwithstanding the foregoing,  with respect to other than the initial qualification, the Company shall not be able to recover any  contributions to the Plan.  ARTICLE XV    MULTIPLE EMPLOYER PROVISIONS  15.1 Application. The provisions of this Article XV shall apply only in the event a  corporation or entity that is not an Affiliate adopts this Plan pursuant to Section 15.2 or in the event  an Employer ceases to be an Affiliate, but does not terminate its participation in the Plan, in which  case such former Employer shall be a Participating Employer.  15.2 Adoption of the Plan. With the consent of the Committee, any other corporation  or entity that is not an Affiliate may adopt this Plan for the benefit of its employees and become a  Participating Employer hereunder. For purposes of the adoption of and participation in the Plan by  Participating Employers, an “Employee” shall include an employee of a Participating Employer.  All assets that relate to Employees of the Participating Employer shall either be held within the  Trust, or a Participating Employer may maintain a separate trust attributable to its portion of Plan  assets. Separate accounting shall be maintained for the Accounts of Employees of each  Participating Employer.  15.3 Service. For purposes of vesting, eligibility to participate in the Plan, and  determining eligibility for allocation of Participating Employer contributions, an Employee shall  be credited with all service with the Company, its Affiliates or any Participating Employer on or  after the effective date of the Participating Employer’s adoption of the Plan. Pre-adoption service  with a Participating Employer may be credited in accordance with the terms of an adoption  





 






-53-  agreement and shall be credited where an Employer ceases to be an Affiliate, but remains a  Participating Employer, or as otherwise required by applicable law.  15.4 Plan Contributions. All contributions made by a Participating Employer, as  provided for in this Plan and unless modified by the terms of an adoption agreement, shall be  determined separately by each Participating Employer. Any forfeiture by an Employee of a  Participating Employer pursuant to Section 4.4 during each Plan Year shall be utilized in  accordance with Section 4.4 only for the exclusive benefit of the Employees of such Participating  Employer in accordance with the provisions of this Plan, unless modified by the terms of the  adoption agreement.  15.5 Transferring Employees. The Committee may adopt equitable procedures  whereby contributions and forfeitures are equitably allocated in the case of Employees transferring  from the employment of one Participating Employer to another Participating Employer, or from  the employment of a Participating Employer to the Company or an Affiliate and vice versa.  Similarly, rules may be adopted whereby Account records may be transferred from the records of  one Participating Employer to another Participating Employer or from the records of a  Participating Employer to the Company or an Affiliate and vice versa.  15.6 Certain Qualification Rules. For any period that the Plan is a multiple employer  plan pursuant to this Article XV, each Related Employer shall be treated as a separate Employer  for purposes of contributions, application of the “ADP” and “ACP” tests described in Sections 3.9  and 3.14 of the Plan, minimum coverage requirements under Code Section 410(b), top-heavy  determinations and application of the top-heavy requirements under Article XIII, and application  of such other Plan provisions as the Committee determine to be appropriate or required by  applicable law.  15.7 Delegation of Authority. Each Participating Employer shall be deemed to have  appointed the Company as its agent to act on its behalf in all matters relating to the administration,  amendment, and termination of the Plan and the investment of the assets of the Plan (the “Agent  Duties”). Other than with respect to the Agent Duties, unless the context of the Plan clearly  indicates the contrary, or the Committee determines otherwise, the word “Company” shall be  deemed to include each Participating Employer as related to its adoption of and participation in  the Plan.  15.8 Termination. The Committee may remove any Participating Employer from the  Plan. Any termination of the Plan or discontinuance of contributions by any one Participating  Employer shall operate with regard only to the Participants that relate to that Participating  Employer. All Participants affected thereby shall have a one hundred percent (100%)  nonforfeitable interest in their Accounts.  Employees of a terminating Participating Employer will  cease to be eligible to accrue additional benefits under this Plan with respect to Compensation  earned on or after the date of termination.  In the event any Participating Employer terminates its participation in this Plan, or  in the event that such Participating Employer shall cease to exist through sale, reorganization, or  bankruptcy, the Trust shall be allocated by the Trustee, in accordance with the direction of the  Committee, into separate trusts, including through a transfer to the trust of a separate defined  





 






-54-  contribution plan. The amount to be allocated to the Trust of the terminating Participating  Employer shall be equal to the value of the Account balances of its Participants as of the most  recent Valuation Date, consistent with Code Section 414(l).  IN WITNESS WHEREOF, CANTOR FITZGERALD L.P. has caused this  amendment and restatement of the Plan to be adopted effective as of November 3, 2020.    CANTOR FITZGERALD, L.P.    By:/s/ Patricia Dreste     Date: December 29, 2020    





 






-55-      APPENDIX A  NEWMARK PLAN PARTICIPANTS  1.  Newmark.  (a) Merger. Effective December 31, 2011 (the “Newmark Plan Merger Date”) the Newmark  & Company Real Estate, Inc. 401k Plan (the “Newmark Plan”) was merged into the Plan.  Effective January 1, 2012 the Newmark Plan is amended and restated as set forth in this  Plan document, including this Appendix A. This Section 1 applies to any individual (a  “Former Newmark Plan Participants who formerly participated in the Newmark Plan and  whose account balance was transferred to this Plan effective as of the Newmark Plan  Merger Date.  (b) Transferred Accounts. A Former Newmark Plan Participant’s transferred accounts from  the Newmark Plan (“Newmark Accounts”) shall be comprised of the following  subaccounts: Newmark Pre-Tax Deferral Account, Newmark Roth Contribution  Account, Newmark Matching Contribution Account, Newmark Rollover Account,  Newmark GMS/FAC Matching Contribution Account, and Newmark GMS/FAC Profit- Sharing Account. Except as provided in this Section 1, each subaccount shall be subject  to the provisions of the core Plan applicable to that money type (for example, the  Newmark Roth Contribution Account shall be subject to the core Plan provisions that  apply to the Roth Contribution Account). The Newmark GMS/FAC Profit-Sharing  Account shall be subject to the provisions of the core Plan applicable to Matching  Contributions.  (c) Meaning of “Disability”. For purposes of applying Section 7.2 of the Plan to a Former  Newmark Plan Participant’s Newmark Accounts, in addition to the circumstances  described in the definition of “Disability” in Article I of the core Plan, a “Disability” shall  include the inability to engage in any substantial, gainful activity by reason of any  medically determinable physical or mental impairment that 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.  (d) Carryover of Elections. A Former Newmark Plan Participant’s pre-tax deferral election,  Roth election, and catch-up election, as applicable, in effect under the Newmark Plan as  of the Newmark Plan Merger Date shall until changed constitute the Participant’s  corresponding respective elections under this Plan as of January 1, 2012. A Former  Newmark Plan Participant’s beneficiary designation in effect under the Newmark Plan  as of the Newmark Plan Merger Date shall until changed constitute such Participant’s  Beneficiary designation under this Plan as of January 1, 2012.  (e) Vesting.  (i) A Participant’s Newmark Pre-Tax Deferral Account, Newmark Roth Contribution  Account, Newmark Rollover Account, Newmark GMS/FAC Matching  Contribution Account, and Newmark GMS/FAC Profit-Sharing Account are fully  vested.  





 






-56-  (ii) For purposes of determining the vested percentage of a Participant’s Newmark  Matching Contribution Account, (i) the Participant shall be credited as of January  1, 2012 with the years of vesting service the Participant had accrued under the  Newmark Plan as of the Newmark Merger Date and shall also be credited with any  Years of Service (as defined in the core Plan) accrued after December 31, 2011,  and (ii) the vested percentage shall be determined by applying the following  schedule:  Years of Service Vested Percentage      Less than 2 0%  2 20%  3 40%  4 60%  5 80%  6 or more 100%    (f) Participation During Transition Period by Newmark Family Properties LLC. In  connection with the transfer of certain business assets and employees of Newmark &  Company Real Estate, Inc. (a Participating Affiliate) to Newmark Family Properties LLC  (“NFP”) (the “Assignment”), and in order to provide NFP with an opportunity to  establish its own savings plan, NFP shall be a Participating Employer in the Plan for the  temporary period (the “NFP Transition Period”) that begins on the closing date of the  Assignment (the “NFP Transition Date”) and ends on the earlier of December 31, 2014  or the day immediately preceding the effective date of NFP’s adoption of its own  qualified savings plan. As NFP is not an Affiliate, the Plan’s multiple employer plan rules  shall apply with respect to its participation during the NFP Transition Period.  (g) Participation During Transition Period by Topline Game Labs, LLC. In connection with  the sale in December 2013 of TopLine Game Labs Holdings, LLC, parent company of  Topline Game Labs, LLC (“Topline”). Topline shall be a Participating Employer in the  Plan for the temporary period (the “TopLine Transition Period”) that begins on January  1, 2014 and ends on the earlier of June 30, 2014 or the day immediately preceding the  effective date of TopLine’s adoption of its own qualified savings plan. As TopLine is not  an Affiliate during the TopLine Transition Period, the Plan’s multiple employer plan  rules shall apply with respect to its participation during the TopLine Transition Period.  2. ELX.  (a) Merger. Effective January 1, 2014 (the “ELX Plan Merger Date”) the ELX Futures  LP 401k Plan (the “ELX Plan”) shall be merged into the Plan and such merger shall  be effectuated as soon as administratively feasible thereafter. The ELX Plan is  amended to indicate that the ELX Plan is merged into the Cantor Plan effective  January 1, 2014. This Section 1 applies to any individual (a “Former ELX Plan  





 






-57-  Participant”) who formerly participated in the ELX Plan and whose account balance  will be transferred to this Plan effective as of the ELX Plan Merger Date.  (b) Transferred Accounts. A Former ELX Plan Participant’s transferred accounts from  the ELX Plan (“ELX Accounts”) shall be comprised of the following subaccounts:  ELX Pre-Tax Deferral Account, ELX Roth Contribution Account, ELX Match  Account (if applicable) ELX Rollover Account, of the core Plan applicable to that  money type (for example, the ELX Roth Contribution Account shall be subject to  the core Plan provisions that apply to the Roth Contribution Account).  (c) Meaning of “Disability”. For purposes of applying Section 7.2 of the Plan to a  Former ELX Plan Participant’s ELX Accounts, in addition to the circumstances  described in the definition of “Disability” in Article I of the core Plan, a “Disability”  shall include the inability to engage in any substantial, gainful activity by reason of  any medically determinable physical or mental impairment that 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.  (d) Carryover of Elections. A Former ELX Plan Participant’s pre-tax deferral election,  Roth election, and catch-up election, as applicable, in effect under the ELX Plan as  of the ELX Plan Merger Date shall until changed constitute the Participant’s  corresponding respective elections under this Plan as of January 1, 2014. A Former  ELX Plan Participant’s beneficiary designation in effect under the ELX Plan as of  the ELX Plan Merger Date shall until changed constitute such Participant’s  Beneficiary designation under this Plan as of January 1, 2014.  





 






-58-    APPENDIX B  NEWMARK CORPORATE SPIN-OFF AND  TRANSFER OF ASSETS TO THE NEW NEWMARK PLAN  1. Corporate Spin-off.  Effective November 30, 2018 (the “Corporate Spin Date”), Newmark  Group Inc. (“Newmark”) spun off from BGC.  As a result of the spin-off, on the Corporate Spin  Date each share of BGC stock in the BGC Fund received a certain number of shares of Newmark  stock as a dividend.  Effective on the Corporate Spin Date, the Plan will maintain an investment  fund to hold the Newmark stock (the “Newmark Fund”).  Also effective on the Corporate Spin  Date, Newmark shall be a Participating Employer in the Plan pursuant to Section 15.1.     2. Definitions.  (a) For purposes of this Appendix B, the term “BGC Participants” shall refer to all  Participants in the Plan that, on and after the Corporate Spin Date, are employed by BGC, the  Company, or any other Affiliate (other than Newmark or one of its subsidiaries) that has adopted  the Plan.  (b) For purposes of this Appendix B, the term “Newmark Participants” shall refer to  all Participants in the Plan that, on and after the Corporate Spin Date, are employed by Newmark  or any subsidiary of Newmark that is a Participating Employer in the Plan.  (c) For purposes of this Appendix B, the term “BGC/Newmark Participants” shall refer  to all Participants in the Plan that, on or after the Corporate Spin Date, are employed by Newmark  or one of its subsidiaries as well as BGC, the Company or any other Affiliate (other than Newmark  or one of its subsidiaries) that has adopted the Plan for the same period of employment.  (d) For purposes of this Appendix B, the term “Discretionary Trustee” shall be  AdvisorTrust, appointed pursuant to the BGC Partners, Inc. Deferral Plan Discretionary-Trustee  Agreement, dated November 28, 2018.  3. Newmark Fund.  Effective as of the Corporate Spin Date, the Plan shall maintain an investment  fund known as the Newmark Fund, which shall hold the Newmark stock received by the Plan in  the spin-off of Newmark from BGC.  Each Participant who was invested in the BGC Fund on the  Corporate Spin Date shall have an interest in the Newmark Fund based upon his or her relative  investment in the BGC Fund on the Corporate Spin Date.  The Newmark Fund shall be frozen to  new investments.  Each Participant with an interest in the Newmark Fund shall have the right to  liquidate his or her investment in the Newmark Fund pursuant to the rules and procedures  established by the Committee under Section 10.4, but no new investments shall be made in the  Newmark Fund. No dividends paid on the Newmark stock in the Newmark Fund may be reinvested  in additional interests in the Newmark Fund; such dividends will be invested in in the qualified  default investment fund identified pursuant to Section 10.4(d).      4. Newmark Fund Sunset.  Effective on the Newmark Plan Spin-off Date (as defined in Section  5(c) below (the “Newmark Fund Sunset Date”), the Trustee shall liquidate all remaining assets in  the Newmark Fund held by BGC Participants.  The proceeds of the liquidation of the Newmark  





 






-59-  Fund shall be allocated on a pro rata basis, to the Accounts of BGC Participants who were invested  in the Newmark Fund immediately prior to the Newmark Fund Sunset Date, based upon each BGC  Participant’s relative investment in the Newmark Fund immediately prior to the Newmark Fund  Sunset Date. All proceeds will be invested in the qualified default investment fund identified  pursuant to Section 10.6(d).  Immediately thereafter, each affected BGC Participant shall be  entitled to direct the investment of such amounts among the Investment Funds as otherwise  permitted under Section 10.6.  The Newmark Fund in the accounts of Newmark Participants and  BCG/Newmark Participants shall be spun off to the New Newmark Plan (as defined in Section  5(c) below) on the Newmark Plan Spin-off Date.    5. Newmark Participants.      (a) Newmark Participants will continue to participate in the Plan on and after the  Corporate Spin Date, provided however that they will no longer be entitled to invest contributions  in the BGC Fund.  With respect to Newmark Participants, no dividends paid on the BGC stock in  the BGC Fund after the Corporate Spin Date will be reinvested in additional interests in the BGC  Fund; such dividends will be invested in in the qualified default investment fund identified  pursuant to Section 10.4(d).    (b) For Newmark Participants who have directed some or all of their contributions to  be invested in the BGC Fund, those contributions made on and after the Corporate Spin Date will  be invested in the qualified default investment fund identified pursuant to Section 10.4(d), until  such time as the Participant modifies his or her investment direction pursuant to Section 10.4.  (c) Newmark will adopt its own retirement plan qualified under Code Section 401(a)  for the Newmark Participants (the “New Newmark Plan”) effective upon the close of business on  November 3, 2020 (the “Newmark Plan Spin-off Date”).  As of the Newmark Plan Spin-off Date,  assets and liabilities equal to the aggregate Account Balances of Newmark Participants will be  spun-off from the Plan and transferred to the New Newmark Plan.   (d) On or as soon as practicable following the Newmark Plan Spin-off Date, the  applicable assets of the Trust attributable to Newmark Participants shall be transferred from the  Trust to the trust for the New Newmark Plan. Such transfer shall be in cash, except that the  Newmark Fund assets will be transferred in kind and the promissory notes related to a Newmark  Participant’s loan(s) from the Plan shall be reregistered. As of the Newmark Plan Spin-off Date,  liabilities equal to the aggregate account balances being transferred, as adjusted through such date,  of each Newmark Participant shall be transferred to the New Newmark Plan and shall be credited  to the corresponding accounts maintained under the New Newmark Plan as provided therein.  (e) Effective as of the Newmark Plan Spin-off Date, Newmark Participants will cease  to participate in the Plan. Each Newmark Participant shall become a participant in the New  Newmark Plan on the Newmark Plan Spin-off Date, subject to the conditions and limitations of  the New Newmark Plan. In addition, each Beneficiary and each alternate payee under a qualified  domestic relations order as defined in Code Section 414(p) of such Newmark Participant shall  become a beneficiary or an alternate payee, as applicable, in the New Newmark Plan on the  Newmark Plan Spin-off Date, subject to the conditions and limitations of the New Newmark Plan.  





 






-60-  (f)   All contributions required or permitted to be made under the terms of the Plan as  of the Newmark Plan Spin-off Date shall be made to the New Newmark Plan to the extent not  contributed hereunder prior to the Newmark Plan Spin-off Date and, if so contributed, shall be  credited to the accounts of the Newmark Participants under the New Newmark Plan pursuant to  the terms of this Plan as though such contributions were contributed to this Plan prior to the  Newmark Plan Spin-off Date.  After the Newmark Plan Spin-off Date, no additional contributions  of any kind to any Newmark Participant will be required or permitted under the Plan.  (g) The benefits that would have been provided under the Plan with respect to any  Newmark Participant who retired or whose employment otherwise terminated prior to the  Newmark Plan Spin-off Date will be provided from the New Newmark Plan pursuant to the terms  of the Plan in effect at the Participant’s termination of employment.  (h)  Beginning at 9:00 a.m. EDT on October 23, 2020 (the “Newmark BGC Sunset  Date”), the Trustee shall liquidate all assets of Newmark Participants in the BGC Fund. The  proceeds of the liquidation of the assets of Newmark Participants in the BGC Fund shall be  allocated on a pro rata basis, to the Accounts of Newmark Participants who were invested in the  Newmark Fund immediately prior to the Newmark BGC Sunset Date, based upon each  Participant’s relative investment in the Newmark Fund immediately prior to the Newmark BGC  Sunset Date. All proceeds will be invested in the qualified default investment fund identified  pursuant to Section 10.4(d).  Immediately thereafter, each affected Participant shall be entitled to  direct the investment of such amounts among the Investment Funds as otherwise permitted under  Section 10.4.  6. BGC/Newmark Participants.    (a)  BGC/Newmark Participants will continue to participate in the Plan on and after the  Corporate Spin Date.    (b) After the Corporate Spin Date, BGC/Newmark Participants may continue to direct  the investment of some or all of their contributions into the BGC Fund.  (c) The BGC/Newmark Participants will not be entitled to invest additional amounts  in the Newmark Fund in the Plan.  (d) Newmark will adopt the New Newmark Plan effective on the Newmark Plan Spin- off Date.  Effective as of such date, the portion of the BGC/Newmark Participants’ Accounts  invested in the Newmark Fund will be transferred to the New Newmark Plan.    (d) On or as soon as practicable following the Newmark Plan Spin-off Date, the  applicable assets of the Trust attributable to BGC/Newmark Participants’ Account Balances  invested in the Newmark Fund shall be transferred from the Trust to the trust for the New Newmark  Plan. Such transfer shall be in in kind.  As of the Newmark Plan Spin-off Date, liabilities equal to  the aggregate account balances being transferred, as adjusted through such date, of each  BGC/Newmark Participant shall be transferred to the New Newmark Plan and shall be credited to  the corresponding accounts maintained under the New Newmark Plan as provided therein.  





 






-61-  (e) Each BGC/Newmark Participant for whom a portion of his or her Account balance  is transferred to the Newmark Plan under this Appendix B shall become a participant in the New  Newmark Plan on the Newmark Plan Spin-off Date, subject to the conditions and limitations of  the New Newmark Plan. In addition, each Beneficiary and each alternate payee under a qualified  domestic relations order as defined in Code Section 414(p) of such BGC/Newmark Participant  shall become a beneficiary or an alternate payee, as applicable, in the New Newmark Plan on the  Newmark Plan Spin-off Date, subject to the conditions and limitations of the New Newmark Plan.  7. Discretionary Trustee.   The Discretionary Trustee has been engaged to monitor the BGC Fund  and the Newmark Fund.  The Discretionary Trustee will take such actions as it deems necessary  and prudent under ERISA with respect to the BGC Fund and Newmark Fund under the Plan.    8. Committee’s Actions.  The Committee shall take such actions as it deems necessary or desirable  to accomplish the transfer as described in this Appendix B.      AmericasActive:15037406.6