Exhibit 10.44


 


PROFIT-SHARING/401(K) PLAN


 


FOR EMPLOYEES OF


 


ROCKWOOD SPECIALTIES INC.


 


As Amended and Restated Effective as of January 1,
2008


 


(Except as otherwise Provided)


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  INTRODUCTION

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE I
  DEFINITIONS

  	
  2

  
	
  1.1

  	
  Account

  	
  2

  
	
  1.2

  	
  Account Balance

  	
  2

  
	
  1.3

  	
  Actual Deferral Percentage

  	
  2

  
	
  1.4

  	
  Administrative Committee

  	
  2

  
	
  1.5

  	
  Affiliate

  	
  2

  
	
  1.6

  	
  Annuity Contract

  	
  2

  
	
  1.7

  	
  Average Actual Deferral Percentage

  	
  3

  
	
  1.8

  	
  Average Contribution Percentage

  	
  3

  
	
  1.9

  	
  Beneficiary

  	
  3

  
	
  1.10

  	
  Benefit Commencement Date

  	
  3

  
	
  1.11

  	
  Break-in-Service

  	
  3

  
	
  1.12

  	
  Change Date

  	
  4

  
	
  1.13

  	
  Code

  	
  4

  
	
  1.14

  	
  Company

  	
  4

  
	
  1.15

  	
  Compensation

  	
  4

  
	
  1.16

  	
  Contribution Percentage

  	
  5

  
	
  1.17

  	
  Defined Benefit Plan

  	
  5

  
	
  1.18

  	
  Defined Contribution Plan

  	
  6

  
	
  1.19

  	
  Disability

  	
  6

  
	
  1.20

  	
  Effective Date

  	
  6

  
	
  1.21

  	
  Elective 401(k) Deferrals

  	
  6

  
	
  1.22

  	
  Eligible Employee

  	
  6

  
	
  1.23

  	
  Eligible Participant

  	
  6

  
	
  1.24

  	
  Employee

  	
  7

  
	
  1.25

  	
  Employer

  	
  7

  
	
  1.26

  	
  Employer-Derived Account Balance

  	
  7

  
	
  1.27

  	
  Employer Matching Contributions

  	
  7

  
	
  1.28

  	
  Employer Matching Contributions Subaccount

  	
  7

  
	
  1.29

  	
  Employment

  	
  7

  
	
  1.30

  	
  Employment Commencement Date

  	
  7

  
	
  1.31

  	
  Entry Date

  	
  7

  
	
  1.32

  	
  ERISA

  	
  7

  
	
  1.33

  	
  Excess Aggregate Contributions

  	
  7

  
	
  1.34

  	
  Excess Contributions

  	
  7

  
	
  1.35

  	
  Excess Deferral

  	
  8

  



 


i

















 


	
  1.36

  	
  401(k) Election

  	
  8

  
	
  1.37

  	
  401(k) Subaccount

  	
  8

  
	
  1.38

  	
  Highly Compensated Employee

  	
  8

  
	
  1.39

  	
  Hour of Service

  	
  8

  
	
  1.40

  	
  Investment Fund

  	
  9

  
	
  1.41

  	
  Investment Manager

  	
  9

  
	
  1.42

  	
  Leased Employee

  	
  9

  
	
  1.43

  	
  Leave of Absence

  	
  10

  
	
  1.44

  	
  Non-Highly Compensated Employee

  	
  10

  
	
  1.45

  	
  Normal Retirement Age

  	
  10

  
	
  1.46

  	
  Participant

  	
  10

  
	
  1.47

  	
  Participating Affiliate

  	
  10

  
	
  1.48

  	
  Period of Service

  	
  10

  
	
  1.49

  	
  Period of Severance

  	
  10

  
	
  1.50

  	
  Plan

  	
  10

  
	
  1.51

  	
  Plan Year

  	
  10

  
	
  1.52

  	
  Primary Employee

  	
  10

  
	
  1.53

  	
  Profit-Sharing Contribution

  	
  10

  
	
  1.54

  	
  Profit-Sharing Contributions Subaccount

  	
  10

  
	
  1.55

  	
  Reduction in Force

  	
  10

  
	
  1.56

  	
  Rollover Contribution

  	
  10

  
	
  1.57

  	
  Rollover Contributions Subaccount

  	
  11

  
	
  1.58

  	
  Seconded Employee

  	
  11

  
	
  1.59

  	
  Severance from Service Date

  	
  11

  
	
  1.60

  	
  Spousal Consent

  	
  11

  
	
  1.61

  	
  Spouse

  	
  11

  
	
  1.62

  	
  Surviving Spouse

  	
  11

  
	
  1.63

  	
  Termination of Employment

  	
  11

  
	
  1.64

  	
  Trust

  	
  11

  
	
  1.65

  	
  Trust Agreement

  	
  11

  
	
  1.66

  	
  Trustee

  	
  11

  
	
  1.67

  	
  Valuation Date

  	
  12

  
	
  1.68

  	
  Vesting Service

  	
  12

  
	
  1.69

  	
  Year of Service

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE II PARTICIPATION

  	
  13

  
	
  2.1

  	
  Admission as a Participant

  	
  13

  
	
  2.2

  	
  Rehired Employees

  	
  13

  
	
  2.3

  	
  Termination of Participation

  	
  14

  
	
  2.4

  	
  Rollover Membership

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE III CONTRIBUTIONS

  	
  15

  
	
  3.1

  	
  Employer Contributions

  	
  15

  
	
  3.2

  	
  After-Tax Contributions

  	
  18

  
	
  3.3

  	
  Elective 401(k) Deferral Limitations

  	
  18

  
	
  3.4

  	
  Employer Matching Contribution Limitations

  	
  21

  



 


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  3.5

  	
  Rollover Contributions

  	
  23

  
	
  3.6

  	
  Timing of Contributions

  	
  23

  
	
  3.7

  	
  Forfeitures

  	
  24

  
	
  3.8

  	
  Limitation on Allocations

  	
  24

  
	
  3.9

  	
  [Reserved]

  	
  27

  
	
  3.10

  	
  Return of Employer Contributions Under Special
  Circumstances

  	
  27

  
	
  3.11

  	
  Profits Not Required

  	
  27

  
	
  3.12

  	
  Contributions Conditioned on Deductibility

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV ACCOUNTS, INVESTMENTS AND ALLOCATIONS

  	
  28

  
	
  4.1

  	
  Establishment of Participant Accounts

  	
  28

  
	
  4.2

  	
  Investment of Funds

  	
  28

  
	
  4.3

  	
  Allocation of Earnings to Accounts

  	
  28

  
	
  4.4

  	
  Allocation Report

  	
  29

  
	
  4.5

  	
  Allocation Corrections

  	
  29

  
	
   

  	
   

  	
   

  
	
  ARTICLE V VESTING AND TOP-HEAVY PROVISIONS

  	
  30

  
	
  5.1

  	
  Determination of Vesting

  	
  30

  
	
  5.2

  	
  Rules for Crediting Vesting Service

  	
  30

  
	
  5.3

  	
  Rules for Crediting Service Upon Termination of
  Employment

  	
  31

  
	
  5.4

  	
  Top-Heavy Provisions

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI AMOUNT AND PAYMENT OF BENEFITS TO
  PARTICIPANTS

  	
  36

  
	
  6.1

  	
  Termination of Employment

  	
  36

  
	
  6.2

  	
  In-Service Distributions

  	
  37

  
	
  6.3

  	
  Loans

  	
  38

  
	
  6.4

  	
  Minimum Required Distributions

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII FORMS OF PAYMENT OF ACCOUNTS

  	
  45

  
	
  7.1

  	
  Methods of Distribution

  	
  45

  
	
  7.2

  	
  Election of Optional Forms

  	
  45

  
	
  7.3

  	
  Direct Rollovers

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII DEATH BENEFITS

  	
  47

  
	
  8.1

  	
  Payment of Account Balances

  	
  47

  
	
  8.2

  	
  Beneficiary

  	
  47

  
	
  8.3

  	
  Required Commencement

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX FIDUCIARIES

  	
  48

  
	
  9.1

  	
  Named Fiduciaries

  	
  48

  
	
  9.2

  	
  Employment of Advisers

  	
  48

  
	
  9.3

  	
  Multiple Fiduciary Capacities

  	
  48

  
	
  9.4

  	
  Payment of Expenses

  	
  48

  
	
  9.5

  	
  Indemnification

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE X TRUSTEE AND TRUST FUND

  	
  50

  



 


iii

















 


	
  10.1

  	
  Establishment of Trust

  	
  50

  
	
  10.2

  	
  Powers and Duties of the Trustee

  	
  50

  
	
  10.3

  	
  Exclusive Benefit

  	
  50

  
	
  10.4

  	
  Delegation of Responsibility

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI PLAN ADMINISTRATION

  	
  51

  
	
  11.1

  	
  The Administrative Committee

  	
  51

  
	
  11.2

  	
  Administrative Committee Powers and Duties

  	
  51

  
	
  11.3

  	
  Claims Procedure

  	
  52

  
	
  11.4

  	
  Delegation of Responsibility

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII MANAGEMENT, CONTROL AND INVESTMENT OF
  PLAN ASSETS

  	
  55

  
	
  12.1

  	
  Investment Funds

  	
  55

  
	
  12.2

  	
  Valuation of Accounts

  	
  55

  
	
  12.3

  	
  Investment in Insurance Contract

  	
  55

  
	
  12.4

  	
  The Investment Manager

  	
  55

  
	
  12.5

  	
  Compensation

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII PLAN AMENDMENT OR TERMINATION

  	
  57

  
	
  13.1

  	
  Plan Amendment

  	
  57

  
	
  13.2

  	
  Limitations of Plan Amendment

  	
  57

  
	
  13.3

  	
  Right of the Company to Terminate Plan

  	
  57

  
	
  13.4

  	
  Effect of Partial or Complete Termination

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV MISCELLANEOUS PROVISIONS

  	
  59

  
	
  14.1

  	
  Plan Not a Contract of Employment

  	
  59

  
	
  14.2

  	
  Source of Benefits

  	
  59

  
	
  14.3

  	
  Benefits Not Assignable

  	
  59

  
	
  14.4

  	
  Domestic Relations Orders

  	
  59

  
	
  14.5

  	
  Benefits Payable to Minors, Incompetents and Others

  	
  59

  
	
  14.6

  	
  Merger or Transfer of Assets

  	
  60

  
	
  14.7

  	
  Participation in the Plan By an Affiliate

  	
  60

  
	
  14.8

  	
  Action by the Company or a Participating Affiliate

  	
  60

  
	
  14.9

  	
  Provision of Information

  	
  61

  
	
  14.10

  	
  Notice of Address

  	
  61

  
	
  14.11

  	
  Controlling Law

  	
  61

  
	
  14.12

  	
  Military Service

  	
  61

  
	
  14.13

  	
  Conditional Adoption

  	
  61

  
	
  14.14

  	
  Word Usage and Article and
  Section References

  	
  61

  
	
  14.15

  	
  Effect of Mistake

  	
  61

  



 


	
  SUPPLEMENT A

  	
  64

  
	
   

  	
   

  	
   

  
	
  SUPPLEMENT B

  	
  66

  
	
   

  	
   

  	
   

  
	
  SUPPLEMENT C

  	
  68

  



 


iv

















 


	
  SUPPLEMENT D

  	
  70

  
	
   

  	
   

  	
   

  
	
  SUPPLEMENT E

  	
  72

  
			



 


v
















 


INTRODUCTION


 


Laporte Inc. established the Profit-Sharing/401(k) Plan
for Employees of Laporte Inc. (the “Plan”) effective as of January 1,
1989. The Plan was amended from time to time for administrative reasons, to
reflect changes in the Laporte Inc. corporate structure, and to comply with
changes in relevant law.


 


The Plan was amended and restated effective as of January 1,
1997 (except where otherwise indicated), to comply with the Uruguay Round
Agreements Act (“GATT”), the Uniformed Services Employment and Reemployment
Rights Act of 1994 (“USERRA”), the Small Business Job Protection Act of 1996 (“SBJPA”),
the Taxpayer Relief Act of 1997 (TRA ‘97), the Internal Revenue Service
Restructuring and Reform Act of 1998 (RRA ‘98), and the Community Renewal Tax Relief
Act of 2000 (“CRA”) (collectively known as “GUST”), and other changes in
applicable law.


 


Effective as of March 1, 2001, the Plan name
was changed to the Profit-Sharing/401(k) Plan for Employees of Rockwood
Specialties Inc. to reflect the acquisition of Laporte Inc. by Rockwood
Specialties Inc. (the “Company”).


 


This Plan was amended and restated effective as of January 1,
2002 (except where otherwise indicated) to reflect the applicable provisions of
the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”).


 


The Plan is hereby amended and restated effective as
of January 1, 2008 (except where otherwise indicated), to incorporate all
effective amendments to the Plan since the Plan’s last amendments and
restatement, and to reflect applicable legislative changes, including changes
under EGTRRA, the Pension Protection Act of 2006, and the final regulations
under Code Section 415.


 


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


 


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


 

















 


ARTICLE I

DEFINITIONS


 


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


 


1.1                                 Account  shall mean a
Participant’s collective account that includes a separate Profit-Sharing
Contributions Subaccount, 401(k) Subaccount, Employer Matching
Contributions Subaccount, and Rollover Contributions Subaccount, as the case
may be.


 


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


 


1.3                                 Actual Deferral Percentage 
shall mean the ratio (expressed as a percentage to the nearest 1/100th
of 1%) of Elective 401(k) Deferrals on behalf of an Eligible Participant
for the Plan Year to the Eligible Participant’s Compensation for the Plan Year.
For purposes of determining Actual Deferral Percentage, an Eligible Participant’s
Compensation for the Plan Year shall not include Compensation paid during (a) any
period prior to the Employee’s participation date, and (b) any period when
the Employee was not an Eligible Participant. In addition, Excess Deferrals of
a Non-Highly Compensated Employee attributable to elective deferrals to this
Plan or any other plan of the Company or an Affiliate shall not be taken into
account.


 


1.4                                 Administrative Committee 
shall mean the committee appointed pursuant to, and having the
responsibilities specified in, Article XI of the Plan.  In the event no such committee has been appointed,
the Company shall be the Administrative Committee.


 


1.5                                 Affiliate  shall mean any
corporation or unincorporated trade or business (other than the Company) while
it is:


 


(a)                             a member of a controlled group of
corporations (within the meaning of Code Section 414(b)) of which the
Company is a member;


 


(b)                            a trade or business under “common control”
(within the meaning of Code Section 414(c)) with the Company;


 


(c)                             a member of an “affiliated service group”
(within the meaning of Code Section 414(m)) which includes the Company; or


 


(d)                            any other entity required to be
aggregated with the Company under Code Section 414(o).


 


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


 


1.6                                 Annuity Contract 
shall mean an individual or group annuity contract issued by an
insurance company providing periodic benefits, whether fixed, variable or both,
the benefits or 


 


2

















 


value of which a Participant or Beneficiary cannot
transfer, sell, assign, discount, or pledge as collateral for a loan or as
security for the performance of an obligation, or for any other purpose, to any
person other than the issuer thereof. The terms of any Annuity Contract
distributed by the Plan to a Participant or Beneficiary shall comply with the
terms of this Plan.


 


1.7                                 Average Actual Deferral Percentage  shall
mean, for any group of Eligible Participants, the average (expressed as a
percentage to the nearest 1/100th of 1%) of the Actual Deferral Percentages for
each of the Eligible Participants in that group, including those not making
Elective 401(k) Deferrals.


 


1.8                                 Average Contribution Percentage 
shall mean, for any group of Eligible Participants, the average
(expressed as a percentage to the nearest 1/100th of 1%) of the Contribution
Percentages for each of the Eligible Participants in that group, including
those on whose behalf Employer Matching Contributions are not being made.


 


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


 


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


 


1.11                           Break-in-Service 
shall mean a one-year period of severance determined on the basis of a
12-consecutive-month period beginning on the severance from service date and ending
on the first anniversary of such date, provided that the Employee during such
12-consecutive-month period does not perform an hour of service (within the
meaning of Section 2530.200b-2(a)(1) of the U.S. Department of Labor
Regulations) for the Employer; provided, however, (a) if an Employee
severs from service as a result of quit, discharge or retirement and then
returns to service within 12 months, the period of severance shall be deemed a
period of service, and (b) if an Employee is absent from service for any
reason other than quit, discharge, retirement or death and during the absence a
quit, discharge or retirement occurs, the period of time between the severance
from service date (i.e., the date of quit, discharge or retirement) and the
first anniversary of the date on which the employee was first absent shall be
taken in account, if the employee returns to service on or before such first
anniversary date.


 


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


 


3

















 


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


 


For purposes of this Section 1.11, a “severance
from service” shall occur on the earlier of (a) the date on which an
Employee quits, retires, is discharged or dies, or (ii) the first
anniversary of the first date of a period in which an Employee remains absent
from service (with or without pay) with the Employer for any reason other than
quit, retirement, discharge or death, such as vacation, holiday, sickness,
disability, leave of absence or layoff.


 


1.12                           Change Date 
shall mean the first day of each calendar month and such other dates as
may be specified by the Administrative Committee.


 


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


 


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


 


1.15                           Compensation 
shall mean all remuneration for services rendered paid by the Employer
to an Employee, including, without limitation, bonuses, overtime and
commissions, but excluding amounts paid or reimbursed by the Employer for
moving expenses incurred by an Employee to the extent that, at the time of
payment, it is reasonable to believe such amounts are deductible by the
Employee under Code Section 217, the value of any non-qualified stock
option granted to a Highly Compensated Employee by the Employer, amounts paid
to a Highly Compensated Employee to enable such Employee to pay taxes on
certain items of compensation received from the Employer, and items which would
be excluded from the definition of “compensation” within the meaning of Treas.
Reg. Section 1.415-2(d)(3). Compensation includes compensation which is
not currently includible in the Participant’s gross income by reason of the
application of Code Section 125, Code Section 402(e)(3), or Code Section 402(h)(1)(B).
Effective as of January 1, 2001, Compensation shall also include amounts
not includible in the Employee’s gross income by reason of the application of
Code Section 132(f).


 


Notwithstanding the foregoing, the Compensation
taken into account for an Employee for any Plan Year shall not exceed $150,000,
as adjusted pursuant to Code Section 401(a)(17) (the “Code Section 401(a)(17)
limitation”). For the 2001 Plan Year, the Code Section 401(a)(17)
limitation is $170,000. Effective for Plan Years beginning after December 31,
2001, Compensation taken into account for an Employee for a Plan Year shall not
exceed $200,000, as adjusted for cost-of-living increases in accordance with Section 401
(a)(1 7)(B) of the Code.


 


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


 


4

















 


later of 21⁄2 months after the Employee’s Severance from Service Date
from employment with the Employer or the end of the Plan Year that includes the
Severance from Service Date from employment with the Employer:


 


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


 


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


 


Post-Severance Compensation shall also include:


 


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


 


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


 


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


 


1.16                           Contribution Percentage 
shall mean the ratio (expressed as a percentage to the nearest 1/100th
of 1%) of the Employer Matching Contributions under the Plan on behalf of an
Eligible Participant for the Plan Year to the Eligible Participant’s Compensation
for the Plan Year. For purposes of determining Contribution Percentage, an
Eligible Participant’s Compensation for a Plan Year shall not include
Compensation during (i) any period prior to the date such Eligible
Participant entered the Plan, and (ii) any period when the Eligible
Participant was not an Eligible Participant. In addition, in determining
Contribution Percentage, Employer Matching Contributions which are forfeited
because they relate to Excess Contributions or Excess Deferrals shall not be
taken into account.


 


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


 


5

















 


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


 


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


 


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


 


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


 


1.20                           Effective Date 
shall mean January 1, 2008 the effective date of this amendment and
restatement of this Plan, except as otherwise provided.


 


1.21                           Elective 401(k) Deferrals 
shall mean contributions made to the Plan by the Employer pursuant to a
Participant’s 401(k) Election.


 


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


 


1.23                           Eligible Participant   shall
mean any Eligible Employee who has met the service requirements of Section 2.1.


 


6

















 


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


 


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


 


1.26                           Employer-Derived Account Balance 
shall mean the balance of a Participant’s Profit-Sharing Contributions
Subaccount and Employer Matching Contributions Subaccount.


 


1.27                           Employer Matching Contributions 
shall mean any contribution to the Plan made by the Employer and
allocated to a Participant’s Employer Matching Contributions Subaccount by
reason of the Participant’s 401(k) Election.


 


1.28                           Employer Matching Contributions
Subaccount  shall mean the separate subaccount
established for a Participant pursuant to Section 4.1(b).


 


1.29                           Employment  shall mean
services performed for the Company or an Affiliate as an Employee.


 


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


 


1.31                           Entry Date  shall mean the
first day of every calendar month and such other dates as may be specified by
the Administrative Committee.


 


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


 


1.33                           Excess Aggregate Contributions 
shall mean, with respect to any Plan Year, the aggregate amount of
Employer Matching Contributions made for the Plan Year on behalf of Highly
Compensated Employees in excess of the maximum amount of such contributions
permitted under Section 3.4.1, determined by hypothetically reducing
contributions made on behalf of Highly Compensated Employees in order of their
Contribution Percentages, beginning with the highest of such percentages.


 


1.34                           Excess Contributions 
shall mean, with respect to any Plan Year, the aggregate amount of
Elective 401(k) Deferrals made for the Plan Year on behalf of Highly
Compensated Employees in excess of the maximum amount of such contributions
permitted under Section 3.3.1(b), determined by hypothetically reducing
contributions made on behalf of Highly Compensated Employees in order of their
Actual Deferral Percentages, beginning with the highest of such percentages.


 


7

















 


1.35                           Excess Deferral 
shall mean the amount of Elective 401(k) Deferrals under this Plan
in excess of the adjusted annual dollar limit of Section 3.3.1 below, or
the amount of Elective 401(k) Deferrals that a Participant allocates to
this Plan pursuant to the claim procedure set forth in Section 3.3.1(a).


 


1.36                           401(k) Election 
shall mean the election by a Participant to make Elective 401(k) Deferrals
in accordance with Section 3.1.2.


 


1.37                           401(k) Subaccount 
shall mean the separate subaccount established for a Participant
pursuant to Section 4.1(a).


 


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


 


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


 


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


 


A
former Employee shall be treated as a Highly Compensated Employee if such
Employee was a Highly Compensated Employee when he or she separated from
service or at any time after attaining age 55. 
The determination of who is a Highly Compensated Employee shall be made
in accordance with Code Section 414(q).


 


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


 


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


 


8

















 


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


 


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


 


Prior to January 1,
2002, an Hour of Service was determined under the general method of crediting
service for an Employee under Treas. Reg. §2530.200b-2 (i.e., actual counting
of hours of service during the applicable 12-consecutive-month computation
period), and/or the equivalencies set forth in Treas. Reg. §2530.200b-3. Accordingly,
an Employee received a year’s credit (in units of years of service or years of
participation) for a computation period during which the Employee was credited
with a specified number of hours of service. An Employee’s rights with respect
to eligibility to participate, vesting and benefit accrual was determined by
totaling the number of years’ credit to which an Employee was entitled.


 


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


 


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


 


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


 


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


 


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


 


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


 


9

















 


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


 


1.44                           Non-Highly Compensated Employee 
shall mean an Employee of the Company or an Affiliate who is not a
Highly Compensated Employee.


 


1.45                           Normal Retirement Age 
shall mean age 65.


 


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


 


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


 


1.48                           Period of Service 
shall mean a period beginning on an Employee’s Employment Commencement
Date (or re-Employment Commencement Date, as applicable) and ending on the
Employee’s Severance from Service Date.


 


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


 


1.50                           Plan  shall mean the
Profit-Sharing/401(k) Plan for Employees of Rockwood Specialties Inc. and
any amendments thereto.


 


1.51                           Plan Year  shall mean the
calendar year.


 


1.52                           Primary Employee 
shall mean each Eligible Employee other than a Seconded Employee.


 


1.53                           Profit-Sharing Contribution 
shall mean any contribution made to the Plan and allocated to a
Participant’s Profit-Sharing Contributions Subaccount in accordance with Section 3.1.4.


 


1.54                           Profit-Sharing Contributions Subaccount 
shall mean the separate subaccount established for a Participant
pursuant to Section 4.1(c).


 


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


 


1.56                           Rollover Contribution 
shall mean a direct rollover of distributions from the following types
of plans: qualified plans described in Code Section 401(a) or 403(a),
including after-tax employee contributions; annuity contracts described in Code
Section 403(b), excluding after-tax employee contributions; and eligible
plans under Code Section 457(b) which are maintained by a state,
political subdivision of a state, or any agency or instrumentality of a state or
political


 


10
















 


subdivision of a state. In
addition, Rollover Contributions will include participant rollover
distributions from individual retirement accounts or annuities described in Section 408(a) or
(b) of the Code that are eligible to be rolled over and would otherwise be
includible in gross income.


 


1.57                           Rollover Contributions Subaccount 
shall mean the separate subaccount established for a Participant
pursuant to Section 4.1(d).


 


1.58                           Seconded Employee 
shall mean an Employee of the Employer who participates in any
non-United States pension plan sponsored by the Company or any Affiliate.


 


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


 


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


 


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


 


1.62                           Surviving Spouse 
shall mean the Spouse of a Participant on the earlier of: (a) the
date of the Participant’s death; or (b) the Participant’s Benefit
Commencement Date.


 


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


 


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


 


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


 


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


 


11

















 


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


 


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


 


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


 


12

















 


ARTICLE
II


PARTICIPATION


 


2.1                                 Admission as a Participant


 


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


 


2.1.2                        Each Eligible Employee shall become a Participant in
the Plan on the Entry Date coinciding with or next following such Eligible
Employee’s completion of at least one month of Employment, provided he or she
is an Eligible Employee on such date. 
This paragraph shall be interpreted in accordance with the elapsed time
method set forth in Treas. Reg. §1.410(a)-7.


 


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


 


2.1.4                        Each Participant shall be entitled to make Elective
401(k) Deferrals, and each Participant who is a Primary Employee shall be
entitled to have Employer Matching Contributions, contributed to his or her
Account upon (a) execution and delivery to the Administrative Committee of
a 401(k) enrollment form, and (b) submission of any information
reasonably required by the Administrative Committee for proper administration
of the Plan. Any Participant in the Plan shall for all purposes be deemed conclusively
to have assented to the provisions of the Plan.


 


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


 


2.2                                 Rehired Employees


 


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


 


2.2.2                        If a Participant who has a Termination of Employment
again becomes an Eligible Employee and his or her prior Years of Service (i.e.,
Period of Service) are not disregarded under Section 2.2.1, then he or she
shall again become a Participant in the Plan as of the first date on which he
or she again becomes an Eligible Employee. However, no Elective 401(k) Deferrals
or Employer Matching Contributions shall be contributed to his or her Account
until the first 


 


13

















 


payroll period after he or she has again executed and
delivered a 401(k) enrollment form in accordance with Section 2.1.4 above.


 


2.2.3                        If an Employee or Participant who has a Termination of
Employment again becomes an Eligible Employee and his or her prior Years of
Service (i.e., Period of Service) are disregarded under Section 2.2.1,
then he or she shall be treated as a new Employee.


 


2.2.4                        A former Employee who has a Termination of Employment
and subsequently performs an Hour of Service within 12 months of his or her
Severance from Service Date, such Employee’s Period of Severance shall instead
be included as part of his or her Period of Service for purposes of
participation and vesting. This paragraph shall be interpreted in accordance
with the service spanning rules set forth in Treas. Reg §1.410(a)-7.


 


2.3                                 Termination of Participation


 


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


 


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


 


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


 


(c)                             his or her death.


 


2.4                                 Rollover Membership


 


An Eligible Employee who makes a Rollover
Contribution in accordance with Section 3.5 shall become a Participant as
of the date of such contribution even if he or she has not yet satisfied the
requirements of Section 2.1; provided, however, that such an Eligible
Employee shall be a Participant only with respect to his or her Rollover
Contributions Subaccount and shall not be eligible to make or receive any other
type of contribution under the Plan until he or she has satisfied the
requirements under Section 2.1.


 


14

















 


ARTICLE
III


CONTRIBUTIONS


 


3.1                                 Employer Contributions


 


3.1.1                        Subject to the limitations set forth in this Article III,
the Employer shall contribute to the Trust an amount equal to the sum of:


 


(a)                             Elective 401(k) Deferrals in such
amount as determined in accordance with Section 3.1.2;


 


(b)                            Employer Matching Contributions in such
amount as determined in accordance with Section 3.1.3; and


 


(c)                             Profit-Sharing Contributions in such
amount, if any, as determined in accordance with Section 3.1.4.


 


3.1.2                        Elective 401(k) Deferrals


 


(a)                             Subject to the limitations set forth in
Sections 3.3, 3.8 and 3.9, the Employer shall contribute to the Trust on behalf
of each of its Employees who has a 401(k) Election in effect for any
payroll period an amount equal to the deferral percentage elected by each such
Participant on his or her 401(k) Election, multiplied by his or her
Compensation for the payroll period. The amount elected by a Participant
pursuant to a 401(k) Election cannot be less than 1 % or greater than 25%
(in 1 % increments) of the Participant’s Compensation. The 401(k) Election
shall be made on a form provided by the Administrative Committee. A Participant
may elect to change the percentage of his or her Elective 401(k) Deferral
effective as of any Change Date by filing the appropriate form with the
Administrative Committee on or before the deadline established by the
Administrative Committee for filing such form. A Participant may elect to
cancel any 401(k) Election at any time by filing the appropriate form with
the Administrative Committee, and such election shall become effective as soon
as practicable. A Participant who elects to cancel his or her Elective 401(k) Deferrals
may elect to resume such deferrals as of any Change Date following such
cancellation by filing a new 401(k) Election with the Administrative
Committee. The Administrative Committee may reduce the amount of any 401(k) Election
or may make such other modifications as necessary so that the Plan complies
with the provisions of Code Section 401 and all contributions are
currently deductible under Code Section 404. All contributions pursuant to
a 401(k) Election shall be made by reducing the Participant’s Compensation
for each payroll period by the amount determined pursuant to the 401(k) Election.
The Administrative Committee may establish such additional rules and
procedures with respect to the making, changing and resumption of contributions
pursuant to 401(k) Elections (including suspension from contributions) as
it shall determine.


 


(b)                            Notwithstanding paragraph (a) above,
and as soon as is practicable as determined by the Administrative Committee,
all Employees who are eligible to make Elective 401(k) Deferrals and who
have attained age 50 before the close of the Plan Year shall be eligible to
make catch-up contributions in accordance with, and subject to the limitations
of, Code Section 414(v). 


 


15

















 


Such catch-up contributions shall not be taken into account for
purposes of the provisions of the Plan implementing the required limitations of
Code Sections 402(g) and 415. The Plan shall not be treated as failing to
satisfy the provisions of the Plan implementing the requirements of Code
Sections 401(k)(3), 401(k)(11), 401(k)(12), 410(b), or 416, as applicable, by
reason of making such catch-up contributions. This paragraph (b) shall
apply only if all other applicable employer plans (within the meaning of Code Section 414(v)(6)(A))
of the Company and the Affiliates permit all eligible participants (within the
meaning of Code Section 414(v)(5)) to make the same catch-up elections, as
required under Code Section 414(v)(4); provided, however, that no eligible
participant shall be permitted to make catch-up contributions under more than
one applicable employer plan.


 


(c)                             Notwithstanding any provision of the Plan
to the contrary, except for occasional, bona fide administrative
considerations, Elective 401(k) Deferrals made pursuant to an election
under paragraph (a) above shall not precede the earlier of (1) the
performance of services relating to such Elective 401(k) Deferrals, and (2) when
the Compensation subject to such Elective 401(k) Deferral election would
be currently available to the Employee in the absence of an election to defer.


 


3.1.3                        Employer Matching Contributions


 


Subject to the limitations set forth in Sections
3.4, 3.8 and 3.9, Employer Matching Contributions shall be made by the Employer
to the Trust on behalf of each of its Primary Employees, who has participated
in the Plan for at least three months and who has a 401(k) Election in
effect for any payroll period, in an amount equal to 50% of the Participant’s
Elective 401(k) Deferral, up to 6% of the Participant’s Compensation, made
for the payroll period. An Employer Matching Contribution shall not be made
with respect to a Participant’s Elective 401(k) Deferrals in excess of 6%
of his or her Compensation for any payroll period.


 


Subject to the limitations set forth in Sections 3.4
and 3.8, Employer Matching Contributions also shall be made by the Employer to
the Trust on behalf of each of its Primary Employees who has elected to make a
catch-up contribution pursuant to Section 3.1.2(b) in an amount equal
to 50% of the Participant’s catch-up contribution. However, in no event shall
the total Employer Matching Contributions made on behalf of any Participant
exceed 6% of his or her Compensation.


 


In addition to the Employer Matching Contributions
provided in the preceding paragraphs, a “True-Up Employer Matching Contribution”
shall be made for the benefit of each eligible Participant (as provided below),
with respect to each Plan Year beginning on or after January 1, 2007.  The True-Up Employer Marching Contribution
amount shall be difference between subsection (a) and (b) below, if
any:


 


(a)                             The amount resulting from recalculating
the Employer Matching Contribution for the applicable Plan Year by assuming
that it is an amount equal to 50% of the Participant’s Elective 401(k) Deferral,
up to 6% of the Participant’s total Compensation for the applicable Plan Year
(rather than any payroll period); provided, however, that the resulting
Employer Matching Contribution amount shall not exceed 6% of the Participant’s
Compensation for such 


 


16

















 


Plan Year.  Any Elective 401(k) Deferral
distributed to a Participant pursuant to Sections 3.3.1, 3.3.2 and 3.3.3 shall
not be considered for this calculation.


 


(b)                            The actual Employer Matching Contribution
credited to the Participant’s Employer Matching Contribution Subaccount for the
applicable Plan Year.  An Employer
Matching Contributions forfeited in connection with the distribution of
Elective 401(k) Deferrals pursuant to Section 3.3.1, 3.3.2 and 3.3.3
shall not be considered for this calculation. 
Further, any Employer Matching Contribution distributed or forfeited
pursuant to the Section 3.4.1, 3.4.2 and 3.4.3 shall not be considered for
this calculation.


 


In no event shall the total Employer Matching
Contribution and True-Up Employer Matching Contribution for the applicable Plan
Year shall not exceed 6% of the Participant’s Compensation for such Plan
Year.  True-Up Employer Matching
Contributions shall be subject to the applicable limits imposed by the Code.


 


The True-Up Employer Matching Contribution
calculation shall be performed as soon as administratively practicable
following the end of each applicable Plan Year. 
A Participant shall be eligible to receive a True-Up Employer Matching
Contribution (if any) for the applicable Plan Year if he or she was eligible
for Employer Matching Contributions for such Plan Year.  True-Up Employer Matching Contributions, if
any, shall be contributed to the Plan without adjustment for any earnings
and/or losses.


 


3.1.4                        Profit-Sharing Contributions


 


(a)                             Subject to the limitations set forth in
Sections 3.8 and 3.9, for each Plan Year, the Employer may contribute to the
Plan an amount, if any, to be determined by Employer in its sole and absolute
discretion. Any such contribution by an Employer shall be allocated among each
Employee of the contributing Employer during the Plan Year who:


 


(i)                                 prior to January 1, 2002, is
employed in “eligible employment” (as defined below) on the last day of the
Plan Year and is credited with at least 1,000 Hours of Service for such Plan
Year;


 


(ii)                              effective as of January 1, 2002, is
employed in “eligible employment” (as defined below) on the last day of the
Plan Year and is credited with a Period of Service of at least 6 months during
such Plan Year;


 


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


 


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


 


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


 


17

















 


For
purposes of this Section 3.1.4, “eligible employment” shall mean
employment as a Primary Employee or employment with an Affiliate that is not an
Employer in a position under which the Employee would be a Primary Employee if
the Affiliate were an Employer.


 


(b)                            Profit-Sharing Contributions with respect
to any Plan Year shall be allocated to the Profit-Sharing Contributions
Subaccount of each Employee eligible for such an allocation under (a) above
according to the ratio that the Employee’s Compensation from the Employer for
the portion of the Plan Year that he or she was an Employee bears to the
aggregate of such Compensation of all Employees eligible for such an
allocation.


 


3.2                                 After-Tax Contributions


 


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


 


3.3                                 Elective 401(k) Deferral Limitations


 


3.3.1                        Elective 401(k) Deferral Limits


 


Elective 401(k) Deferrals shall be subject to
the following:


 


(a)                                  Code Section 402(g) Dollar
Limit


 


A Participant’s Elective 401(k) Deferrals
made under this Plan and his or her elective deferrals made under all other
plans of the Company and its Affiliates during any taxable year shall not
exceed the adjusted limit imposed on elective deferrals for such year under
Code Section 402(g). This limit shall not apply to the extent permitted
under Plan Section 3.1.2(a) and Code Section 414(v).


 


A Participant may claim
Excess Deferrals for any taxable year by filing a written claim with the
Administrative Committee not later than the March 1 following the taxable
year for which the Excess Deferrals were contributed. Any such claim shall
specify the amount of the Participant’s Excess Deferrals for the year and shall
be accompanied by the Participant’s written statement that, if such amounts are
not distributed, such Excess Deferrals, when added to amounts deferred under
other plans or arrangements described in Code Section 402(g)(3) (whether
or not maintained by the Company or an Affiliate), will exceed the limit
imposed on the Participant by Code Section 402(g) for the year in
which the deferral occurred. Excess Deferrals shall be distributed in
accordance with Section 3.3.2 below.


 


(b)                            Average Actual Deferral Percentage Test


 


The Average Actual Deferral
Percentage for Eligible Participants who are Highly Compensated Employees for
any Plan Year must satisfy one of the following tests:


 


(i)                                     The Average Actual Deferral Percentage
for Eligible Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the Average Actual 


 


18

















 


Deferral Percentage for Eligible Participants who were Non-Highly
Compensated Employees for the prior Plan Year multiplied by 1.25; or


 


(ii)                                  The Average Actual Deferral Percentage
for Eligible Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the Average Actual Deferral Percentage for Eligible
Participants who were Non-Highly Compensated Employees for the prior Plan Year
multiplied by 2.0, provided that the excess of the Average Actual Deferral
Percentage for Eligible Participants who are Highly Compensated Employees over
the prior Plan Year’s Average Actual Deferral Percentage for Eligible
Participants who were Non-Highly Compensated Employees is not more than two
percentage points.


 


At the Company’s election,
the current Plan Year’s Average Actual Deferral Percentage data for Eligible
Participants who are Non-Highly Compensated Employees may be used; provided,
however, that if an election to use current Plan Year data is made, it cannot
be changed except as provided by the Secretary of the Treasury.


 


This Section 3.3.1(b) shall
not apply to the extent permitted under Plan Section 3.1.2(a) and
Code Section 414(v).


 


(c)                                  Aggregation of Elective 401(k) Deferrals


 


(i)                                     For purposes of this Section 3.3.1,
the Actual Deferral Percentage for any Eligible Participant who is a Highly
Compensated Employee for the Plan Year and who is eligible to have Elective 401(k) Deferrals
allocated to his or her account under two or more plans or arrangements
described in Code Section 401(k) that are maintained by the Company
or an Affiliate shall be determined as if all such Elective 401(k) Deferrals
were made under a single arrangement.


 


(ii)                                  In the event that this Plan satisfies the
requirements of Code Sections 401(k), 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 such Code Sections only if aggregated with this Plan, then
this section shall be applied by determining Average Actual Deferral
Percentages as if all such plans were a single plan.


 


3.3.2                        Distribution of Excess Deferrals


 


(a)                                  Notwithstanding any other provision of
the Plan, Excess Deferrals, plus any income and minus any loss allocable
thereto, shall be distributed no later than April 15 following the close
of the taxable year for which the Participant’s Excess Deferrals were
contributed. Excess Deferrals may be returned during the taxable year in which
they were made only if designated as Excess Deferrals. The income or loss
allocable to Excess Deferrals shall be determined through the end of the
taxable year to which the contributions relate by the Administrative Committee
in accordance with applicable regulations.


 


For taxable years beginning on or after January 1, 2007,
gap-period earnings shall be included with the distribution of Excess Deferrals
(as defined in Code Section 402(g)(2)(A) to 


 


19

















 


the extent the Participant is or would be credited with an allocable
gain or loss on such Excess Deferrals for the gap-period, if the total amount
were to be distributed.  Any income
and/or losses earned during the gap-period shall be allocated to all
Participants and to all corrective distributions for the taxable year in a
consistent and non-discriminatory manner. The gap period income and/or losses
allocable to a Participant’s Excess Deferrals shall be determined by any one of
the methods provided in Treas. Reg. §1.402(g)-1(e)(5).  However, if contrary legal guidance is
promulgated after April 30, 2007, then excess deferrals shall be adjusted
for income and/or losses only to the extent mandated by such guidance.  For purposes of this paragraph, the “gap
period” means the period between the close of the applicable Plan Year and
prior to the distribution; provided, however, that income or loss for the “gap
period” may be determined as of a date that is no more than seven days before
the date of distribution.


 


(b)                            Employer Matching Contributions related
to Excess Deferrals, together with any allocable income or loss, shall be
forfeited and used to reduce Employer Matching Contributions and Profit-Sharing
Contributions. For this purpose, Excess Deferrals shall be deemed attributable
first to unmatched Elective 401(k) Deferrals.


 


3.3.3                        Distribution of Excess Contributions


 


Notwithstanding any other provision of the Plan,
Excess Contributions, plus any income and minus any loss allocable thereto,
shall be distributed no later than the last day of the close of the Plan Year
following the Plan Year for which the Excess Contributions were made in
accordance with the following:


 


(a)                                  The Excess Contributions with respect to
Highly Compensated Employees shall be distributed in accordance with the
following procedure.


 


(i)                                     The total amount of Excess Contributions
for all affected Highly Compensated Employees shall be calculated in accordance
with Section 1.34.


 


(ii)                                  The Elective 401(k) Deferrals of the
Highly Compensated Employee with the highest dollar amount of Elective 401(k) Deferrals
for the Plan Year shall be reduced by the amount required to cause that Highly
Compensated Employee’s Elective 401(k) Deferrals to equal the dollar
amount of Elective Compensated Employee with the next highest dollar amount of
Elective 401(k) Deferrals.  This
amount is then distributed to such Highly Compensated Employee with the highest
dollar amount of Elective 401(k) Deferrals.  However, if a lesser reduction under this Section 3.3.3(a)(ii) would
equal the total Excess Contributions, then such lesser reduction amount shall
be distributed.


 


(iii)                               Notwithstanding anything to the contrary in this
Section, prior to the distribution of any Excess Contributions, all or a part
of the Excess Contributions, as applicable, shall be recharacterized as
catch-up contributions for catch-up contribution eligible Participants, up to
the catch-up contributions limit for the appolicable Plan Year in accordance
with the requirements of Treasury Regulation Section 1.414(v)-1(d)(2)(iii).


 


20
















 


(iv)                               If the total dollar amount distributed is
less than the total Excess Contributions for the Plan Year for all affected
Highly Compensated Employees the process described in this Section 3.3.3(a)(ii) shall
be repeated until the total dollar amount distributed equals the Excess
Contributions for the year.


 


(b)                            The income or loss allocable to Excess
Contributions shall be determined through the end of the Plan Year to which the
contributions relate by the Administrative Committee in accordance with applicable
regulations. Effective as of January 1, 2006, the income or loss allocable
to Excess Contributions shall be determined in accordance with the requirements
of Treasury Regulation Section 1.401(k)-2(b)(2)(iv) as follows:  The income or loss attributable to the Excess
Contributions shall be the sum of (i) the income or loss on such
contributions for the Plan Year, determined under any reasonable method, and (ii) the
income or loss on such Excess Contributions for the “gap period”, determined
under such reasonable method.  Any
reasonable method used to determine income or loss hereunder shall be used
consistently for all Participants and for all corrective distributions under
the Plan for the applicable Plan Year. 
For purposes of this paragraph, the “gap period” means the period
between the close of the applicable Plan Year and prior to the distribution;
provided, however, that income or loss for the “gap period” may be determined
as of a date that is no more than seven days before the date of distribution.  Notwithstanding anything in this paragraph to
the contrary, the Administrative Committee may elect, in a non-discriminatory
manner, not to distribute “gap period” income with respect to any Plan Year
beginning on or after January 1, 2008.


 


(c)                             Employer Matching Contributions related
to Excess Contributions, together with any allocable income or loss, shall be
forfeited and used to reduce Employer Matching Contributions and Profit-Sharing
Contributions. For this purpose, Excess Contributions shall be deemed
attributable first to unmatched Elective 401(k) Deferrals.


 


3.4                                 Employer Matching Contribution
Limitations


 


3.4.1                        Limit on Employer Matching Contributions


 


For each Plan Year, Employer Matching Contributions
shall be subject to the following provisions:


 


(a)                                  Contribution Percentage Test


 


For Employer Matching
Contributions made on behalf of Highly Compensated Employees for each Plan
Year, the Average Contribution Percentage for Primary Employees who are Highly
Compensated Employees for the Plan Year must not exceed the greater of:


 


(i)                                     The Average Contribution Percentage for
Primary Employees who were Non-Highly Compensated Employees for the prior Plan
Year, multiplied by 1.25; or


 


(ii)                                  The lesser of (A) the Average
Contribution Percentage for Primary Employees who were Non-Highly Compensated
Employees for the prior Plan Year, multiplied by 2.0; or (B) the prior
Plan Year’s Average Contribution Percentage for 


 


21

















 


Primary Employees who were Non-Highly Compensated
Employees plus two percentage points.


 


At the Company’s election,
the current Plan Year’s Average Contribution Percentage data for Primary
Employees who are Non-Highly Compensated Employees may be used; provided,
however, that if an election to use prior Plan Year data is made, it cannot be
changed except as provided by the Secretary of the Treasury.


 


(b)                                 Aggregation of Contributions


 


(i)                                     For purposes of this Section 3.4.1,
the Contribution Percentage for any Primary Employee who is a Highly Compensated
Employee for the Plan Year and who is eligible to receive matching
contributions or to make employee after-tax contributions under one or more
other plans described in Code Section 401 (a) that are maintained by
the Company or an Affiliate shall be determined as if all such contributions
were made under a single plan aggregated with this Plan.


 


(ii)                                  In the event that this Plan satisfies the
requirements of Code Sections 401(m), 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 such Code Sections only if aggregated with this Plan, then
this section shall be applied by determining Average Contribution Percentages
as if all such plans were a single plan.


 


3.4.2                        Distribution of Excess Aggregate Contributions


 


Notwithstanding any other provisions of the Plan,
Excess Aggregate Contributions, plus any income and minus any loss allocable
thereto, shall be distributed or forfeited to the extent not vested no later
than the last day of the close of the Plan Year following the Plan Year for
which the Excess Aggregate Contributions were made in accordance with the
following:


 


(a)                                  The Excess Aggregate Contributions with
respect to Highly Compensated Employees shall be distributed in accordance with
the following procedure.


 


(i)                                     The total amount of Excess Contributions
for all affected Highly Compensated Employees shall be calculated in accordance
with Section 1.33.


 


(ii)                                  The Employer Matching Contributions of
the Highly Compensated Employee with the highest dollar amount of Employer
Matching Contributions for the Plan Year shall be reduced by the amount
required to cause that Highly Compensated Employee’s Employer Matching
Contributions to equal the dollar amount of Employer Matching Contributions of
the Highly Compensated Employee with the next highest dollar amount of Employer
Matching Contributions.  This amount is
then distributed to such Highly Compensated Employee with the highest dollar
amount of Employer Matching Contributions. 
However, if a lesser reduction under this Section 3.3.3(a)(ii) would
equal the total Excess Aggregate Contributions, then such lesser reduction
amount shall be distributed.


 


22

















 


(iii)                               If the total dollar amount distributed in less than
the total Excess Aggregate Contributions for the Plan Year for all affected
Highly Compensated Employees, the process described in Section 3.4.2(a)(ii) is
repeated until the total dollar amount distributed equals the total excess contributions
for the Plan Year.


 


(b)                                 The income or loss allocable to Excess
Aggregate Contributions shall be determined through the end of the Plan Year to
which the contributions relate by the Administrative Committee in accordance
with applicable regulations.  Effective
as of January 1, 2006, the income or loss allocable to the Excess
Aggregate Contributions shall be determined in accordance with the requirements
of Treasury Regulation Section 1.401(m)-2(b)(2)(iv) as follows:  The income or loss attributable to the Excess
Aggregate Contributions shall be the sum of (i) the income or loss on such
contributions for the Plan Year, determined under any reasonable method, and (ii) the
income or loss on such Excess Aggregate Contributions for the “gap period”,
determined under such reasonable method. 
Any reasonable method used to determine income or loss hereunder shall
be used consistently for all Participants and for all corrective distributions
under the Plan for the applicable Plan Year. 
For purposes of this paragraph, the “gap period” means the period
between the close of the applicable Plan Year and prior to the distribution;
provided, however, that income or loss for the “gap period” may be determined
as of a date that is no more than seven days before the date of
distribution.  Notwithstanding anything
in this paragraph to the contrary, the Administrative Committee may elect, in a
non-discriminatory manner, not to distribute “gap period” income with respect
to any Plan Year beginning on or after January 1, 2008.


 


3.4.3                        [Reserved]


 


3.5                                 Rollover Contributions


 


Any Eligible Employee may make a Rollover
Contribution to the Plan. A Rollover Contribution shall be in cash only or such
other property as may be acceptable under rules established by the
Administrative Committee. The Administrative Committee may condition acceptance
of a contribution intended to be a Rollover Contribution upon receipt of such
documents as it may require. In the event that an Eligible Employee makes a
contribution pursuant to this Section 3.5 intended to be a Rollover
Contribution but which the Administrative Committee later concludes did not
qualify as a Rollover Contribution, the Trustee shall distribute to the
Eligible Employee, as soon as practicable after that conclusion is reached, the
amount of such contribution, together with any earnings thereon.


 


3.6                                 Timing of Contributions


 


The Employer shall transfer
Profit-Sharing Contributions to the Trustee no later than the last day
prescribed by law for the filing of the Employer’s federal income tax return
(including extensions thereon) for the taxable year of the Employer which
includes the last day of the Plan Year for which such contributions were made.
The Employer shall transfer Elective 401(k) Deferrals to the Trustee as
soon as practicable following the end of each month, but in no event later than
the 15th business day of the month following the month in which the Elective
401(k) Deferral would otherwise have been payable to the Participant in
cash. The Employer shall 


 


23

















 


transfer Employer Matching Contributions to the Trustee at such time as
it shall determine, but in no event later than the last day prescribed by law
for the filing of the Employer’s federal income tax (including extensions
thereof) for the taxable year of the Employer which includes the last day of
the Plan Year for which such contributions were made.  The Employer shall transfer True-Up Employer
Matching Contribution (if any) to the Trustee at such time as it shall determine,
but in no event later than the last day prescribed by law for the filing of the
Employer’s federal income tax (including extensions thereof) for the taxable
year of the Employer which includes the last day of the Plan Year for which
such contributions were made.


 


3.7                                 Forfeitures


 


Any Forfeitures arising under the Plan shall be
applied to reduce Employer Matching Contributions and Profit-Sharing
Contributions.


 


3.8                                 Limitation on Allocations


 


3.8.1                        As used in this Section 3.8 and in Section 3.9,
each of the following terms shall have the meaning for that term set forth in
this Section 3.8.1:


 


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


 


(i)                                     Company or Affiliate contributions;


 


(ii)                                  Employee contributions;


 


(iii)                               forfeitures;


 


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


 


(v)                                 allocations under a simplified employee
pension.


 


Amounts
attributable to Rollover Contributions or trust to trust transfers shall not be
Annual Additions.


 


Excess Deferrals which are not distributed before
the April 15 following the taxable year to which they relate and Excess
Contributions and Excess Aggregate Contributions shall be treated as Annual
Additions.


 


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


 


24

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(f)                                    Limitation Compensation means an Employee’s compensation as
determined pursuant to Code Section 415(c)(3). Limitation Compensation
shall be subject to the adjusted dollar limitation under Code Section 401(a)(17).


 


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


 


(h)                                 Maximum Permissible Amount means, for a Limitation Year and with
respect to any Participant, the lesser of (i) the Defined Contribution
Dollar Limitation, or (ii) 100% of the Participant’s Limitation
Compensation for the Limitation Year provided, however, that the percentage of
Limitation Compensation limit shall not apply to (A) any contribution for
medical benefits (within the meaning of Code Section 419A(d)(2)) after
Termination of Employment which is otherwise treated as an Annual Addition, or (B) an
amount otherwise treated as an Annual Addition under Code Section 415(l)(1).
This Section 3.8.1(h) shall not apply to the extent permitted under
Plan Section 3.1.2(a) and Code Section 414(v).


 


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


 


25

















 


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


 


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


 


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


 


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


 


(d)                                 If, as a result of the allocation of
forfeitures, a reasonable error in estimating a Participant’s annual Limitation
Compensation, a reasonable error in determining the amount of elective
deferrals that may be made with respect to any Participant under the limits of
Code Section 415, or under other limited facts and circumstances that the
Commissioner of Internal Revenue finds justify the availability of the rules set
forth in this Section 3.8.2(d), the Annual Additions under the Plan for a
particular Participant would cause the limitations of Code Section 415 to
be exceeded, then -


 


(i)                                     Elective 401(k) Deferrals shall be
returned to the Participant to the extent of the Excess Amount.


 


(ii)                                  If, after the application of Section 3.8.2(d)(i),
an Excess Amount still exists and the Participant is covered by the Plan at the
end of the Limitation Year, the Excess Amount in the Participant’s Account will
be used to reduce Employer Matching Contributions for such Participant in the
next Limitation Year and each succeeding Limitation Year, if necessary.


 


(iii)                               If, after the application of Section 3.8.2(d)(ii),
an Excess Amount still exists and the Participant is not covered by the Plan at
the end of a Limitation Year, the Excess Amount will be held unallocated in a
suspense account and applied to reduce Employer Matching Contributions for all
remaining Participants in the next Limitation Year and each succeeding
Limitation Year, if necessary.


 


26

















 


If a suspense account is in existence at any time
during a particular Limitation Year, all amounts in the suspense account must
be allocated and reallocated to Participants’ Accounts before any Employer or
Employee contributions may be made to the Plan for that Limitation Year. Any
Elective 401(k) Deferrals returned under this Section 3.8.2(d) shall
be disregarded for purposes of the Average Actual Deferral Percentage Test set
forth in Section 3.3.1(b) and the annual limit on Elective 401(k) Deferrals
under Code Section 402(g).


 


3.9                                 [Reserved]


 


3.10                           Return of Employer Contributions Under
Special Circumstances


 


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


 


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


 


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


 


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


 


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


 


3.11                           Profits Not Required


 


All contributions to the Plan may be made without
regard to the current or accumulated earnings or profits of the Employer. The
Plan shall, however, continue to be designated as a profit sharing plan for
purposes of the Code.


 


3.12                           Contributions Conditioned on
Deductibility


 


All contributions made under the Plan are made on
the condition that they are currently deductible under Code Section 404;
provided, however, that no contributions shall be returned to the Employer
except as provided in Section 3.10.


 


27

















 


ARTICLE
IV


ACCOUNTS, INVESTMENTS AND
ALLOCATIONS


 


4.1                                 Establishment of Participant Accounts


 


The Administrative Committee shall establish and maintain
an Account in the name of each Participant and shall credit or cause to be
credited all amounts allocable to each such Participant to the following
subaccounts:


 


(a)                                  401(k) Subaccount. 
Any Elective 401(k) Deferrals allocable to the Participant and the
earnings, losses and expenses attributable thereto.


 


(b)                                 Employer Matching Contributions
Subaccount.  Any Employer Matching Contributions allocable
to the Participant and the earnings, losses and expenses attributable thereto.


 


(c)                                  Profit-Sharing Contributions Subaccount. 
Any Profit-Sharing Contributions allocable to the Participant and the
earnings, losses and expenses attributable thereto.


 


(d)                                 Rollover Contributions Subaccount. 
Any Rollover Contributions allocable to the Participant and the earnings,
losses and expenses attributable thereto.


 


The
maintenance of separate subaccounts under this Section 4.1 is for
accounting purposes only, and a physical segregation of assets of the Trust to
each separate subaccount shall not be required. Any distribution to a
Participant or Beneficiary, or any withdrawal by or loan to a Participant under
Article VI, shall be charged to the appropriate subaccount of the
Participant in accordance with procedures established by the Administrative
Committee.


 


4.2                                 Investment of Funds


 


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


 


4.3                                 Allocation of Earnings to Accounts


 


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


 


28

















 


4.4                                 Allocation Report


 


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


 


4.5                                 Allocation Corrections


 


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


 


29

















 


ARTICLE
V


VESTING AND TOP-HEAVY
PROVISIONS


 


5.1                                 Determination of Vesting


 


5.1.1                        A Participant shall at all times have a vested
percentage of 100% in the balance of his or her 401(k) Subaccount and
Rollover Contributions Subaccount.


 


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


 


5.1.3                        A Participant shall be fully vested at all times in
his or her Employer Matching Contributions Subaccount and Profit-Sharing
Contributions Subaccount; provided, however, prior to July 31, 2004, the
vested percentage of a Participant in his or her Employer Matching
Contributions Subaccount, and Profit-Sharing Contributions Subaccount shall be
determined in accordance with the following schedule:


 




	
  Completed Years

  	
   

  	
  Vested

  	
   

  
	
  of Vesting Service

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2 years

  	
   

  	
  25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  3 years

  	
   

  	
  50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  4 years

  	
   

  	
  75

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  5 years

  	
   

  	
  100

  	
  %

  






 


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


 


5.2                                 Rules for Crediting Vesting Service


 


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


 


(a)                                  Subject to the limitations set forth in
Sections 5.2.2 and 5.2.3, a Participant shall earn a year of Vesting Service
for each one year Period of Service he or she completes. For purposes of
determining a one year Period of Service for vesting, non-successive Periods of
Service shall be aggregated on the basis that Periods of Service totaling 12
months (with 30 days deemed to be a month in the case of the aggregation of fractional
months) or 365 days shall equal a whole year Period of Service. This paragraph
shall be interpreted in accordance with the elapsed time method set forth in
Treas. Reg. §1.410(a)-7.


 


30
















 


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


 


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


 


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


 


5.3                                 Rules for Crediting Service Upon
Termination of Employment


 


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


 


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


 


5.3.3                        The Plan shall disregard Elective 401(k) Deferrals
in applying the vesting provisions of the Plan to other contributions or
benefits under Code Section 411(a)(2). However, the Plan shall otherwise
take a Participant’s Elective 401(k) Deferrals into account in determining
the Participant’s vested benefits under the Plan. Thus, for example, the Plan
shall take Elective 401(k) Deferrals into account in determining whether a
Participant has a nonforfeitable right to contributions under the Plan for
purposes of forfeitures, and for applying provisions permitting 


 


31

















 


the repayment of distributions to have forfeited
amounts restored, and the provisions of Code Sections 410(a)(5)(D)(iii) and
411(a)(6)(D)(iii) permitting a plan to disregard certain service completed
prior to breaks-in-service (sometimes referred to as “the rule of parity”).


 


5.4                                 Top-Heavy Provisions


 


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


 


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


 


(b)                                 Determination Period means the Plan Year containing the
Determination Date.


 


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


 


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


 


(ii)                                  an owner (or considered an owner under
Code Section 318) of one of the ten largest interests in the Company or an
Affiliate if such individual’s compensation exceeds 100% of the Defined
Contribution Dollar Limitation; provided, however, that this subparagraph (ii) shall
not apply for Plan Years beginning after December 31, 2001;


 


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


 


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


 


(d)                                 Limitation Compensation means an amount determined in accordance
with Section 3.8.1(f).


 


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


 


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


 


(g)                                 Required Aggregation Group means (i) each Qualified Plan of
the Company or an Affiliate in which at least one Key Employee participates,
and (ii) any other Qualified Plan of the 


 


32

















 


Company or an Affiliate which enables a plan described in (i) to
meet the requirements of Code Section 401(a)(4) and Code Section 410.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


33

















 


(ii)                                  If the Company or any Affiliate maintains
one or more Defined Contribution Plans (including any “simplified employee
pension” within the meaning of Code Section 408(k)) and the Company or any
Affiliate maintains or has maintained one or more Defined Benefit Plans which,
during the one year period ending on the Determination Date, has or has had any
accrued benefits, the Top-Heavy Ratio is a fraction, the numerator of which is
the sum of the account balances under the aggregated Defined Contribution Plans
for all Key Employees, determined in accordance with (iv) above, plus the
present value of accrued benefits under the aggregated Defined Benefit Plans
for all Key Employees as of the Determination Date and the denominator of which
is the sum of the account balances under the aggregate Defined Contribution
Plans for all Participants, determined in accordance with (iv) above, plus
the present value of accrued benefits under the Defined Benefit Plans for all
such Participants as of the Determination Date, all determined in accordance
with Code Section 416; provided, however, that the numerator and
denominator of the Top-Heavy Ratio shall include any accrued benefit under a
Defined Benefit Plan distributed within the one year period ending on the
Determination Date due to severance from employment, separation from service,
death, or disability, and shall also include any part of any account balance
distributed for any other reason within the five year period ending on the
Determination Date.


 


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


 


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


 


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


 


5.4.3                        (a)  Except as provided in Section 5.4.3(b),
and except to the extent any other Defined Contribution Plan (except for The
Rockwood Specialties Inc. Money Purchase Pension Plan) or Defined Benefit Plan
provides such minimum benefit to the Participant, for any Plan Year in which
the Plan is a Top-Heavy Plan, contributions and forfeitures allocated to the
Profit-Sharing Contributions Subaccount of any Participant who is a Non-Key
Employee (whether or not such 


 


34

















 


Participant has completed 1,000 Hours of Service in
that Plan Year) with respect to that Plan Year shall not be less than the
smaller of-


 


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


 


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


 


Effective
for Plan Years beginning after December 31, 2001, Employer Matching
Contributions shall be taken into account for purposes of satisfying the
minimum contribution requirements of Section 416(c)(2) of the Code
and this paragraph (a). The preceding sentence shall apply with respect to
Employer Matching Contributions under this Plan or, if the Plan provides that
the minimum contribution requirement shall be met in another plan, employer
matching contributions under such other plan. Employer Matching Contributions
that are used to satisfy the minimum contribution requirements shall also be
counted for purposes of the Average Contribution Percentage test of Plan Section 3.4.1
and other requirements of Code Section 401(m).


 


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


 


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


 


35

















 


ARTICLE
VI


AMOUNT AND PAYMENT OF
BENEFITS TO PARTICIPANTS


 


6.1                                 Termination of Employment


 


6.1.1                        A Participant shall be entitled to receive the vested
portion of his or her Account Balance upon a Termination of Employment which
constitutes a “severance from employment” under Code Section 401(k).


 


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


 


(a)                                  A Participant who terminates Employment
prior to his or her Normal Retirement Date may make a written election (with
Spousel Consent, if married) to receive his or her vested Account Balance as of
a date prior to his or her Normal Retirement Date, provided such election is
made during the 180-day period preceding his Benefit Commencement Date. The
Administrative Committee shall notify the Participant (and the Participant’s
Spouse, if any) of the right to defer any distribution until the Participant’s
Required Distribution Date. Such notification shall include a general
description of the material features of the optional forms of benefit under the
Plan in a manner which would satisfy the notice requirements of Treasury
Regulations Section 1.411 (a)-11. Such notice shall be provided no less
than 30 days and no more than 180 days prior to the Benefit Commencement Date.
However, distribution may commence less than 30 days after such notice is
provided, so long as (i) the Participant (and his or her Spouse, if
applicable) has been provided with information that clearly indicates that he
or she has at least 30 days to consider whether to consider the decision of
whether or not to elect a distribution; and (ii) the Participant (and his
or her Spouse, if applicable) affirmatively elects a distribution.


 


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


 


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


 


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


 


(b)                                 the Participant’s termination of
employment; or


 


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


 


36

















 


Notwithstanding
the foregoing, a Participant who terminates employment may elect to defer
receipt of his or her benefit until his or her Required Distribution Date. In
no event shall a Participant begin to receive his or her benefit later than is
required under Section 6.2.3.


 


6.2                                 In-Service Distributions


 


6.2.1                        Prior to Termination of Employment, a Participant who
is at least age 59-1/2 may elect to withdraw all or any part of his or her
vested Account Balance; provided, however, that any such withdrawal shall be
permitted only if Spousal Consent (if married) to the withdrawal is obtained
within 90 days prior to the date of the withdrawal, and provided, further, that
any such withdrawal shall be subject to such rules and procedures as the
Administrative Committee may establish. 
A Participant who has incurred a Disability may also elect to withdraw
all or any part of his or her vested Account Balance in accordance with this Section 6.2.1.


 


6.2.2                        Prior to Termination of Employment, a
Participant may request a distribution from his or her 401(k) Subaccount
due to hardship. The amount of a hardship withdrawal from a Participant’s 401(k) Subaccount
shall not exceed the amount of his or her Elective 401(k) Deferrals
(without earnings). A hardship withdrawal shall be permitted only if (1) the
Administrative Committee determines that it is due to an immediate and heavy
financial need (in accordance with (a) below) and is necessary to satisfy
such financial need (in accordance with (b) below), and (2) the
Participant obtains Spousal Consent to such withdrawal within 90 days prior to
the date of the withdrawal. A withdrawal under this Section 6.2.2 shall be
subject to such rules and procedures as the Administrative Committee may
establish.


 


(a)                                  A distribution shall be considered due to
an immediate and heavy financial need only if it is due to:


 


(i)                                    medical expenses described in Code Section 213(d) of
the Participant, the Participant’s Spouse, or any dependents of the Participant
(as defined in Code Section 152);


 


(ii)                                 the purchase (excluding mortgage
payments) of a principal residence for the Participant;


 


(iii)                              the payment of tuition and related
educational fees for the next 12 months of post-secondary education for the
Participant or his or her Spouse, children or dependents;


 


(iv)                             the need to prevent the eviction of the
Participant from his or her principal residence or foreclosure on the mortgage
of the Participant’s principal residence:


 


(v)                                the funeral expenses of a member of the
Participant’s family; or


 


(vi)                             any other condition or event which the
Commissioner of the Internal Revenue Service determines is a deemed immediate
and financial need.


 


37

















 


(b)                                 A distribution will be considered
necessary to satisfy an immediate and heavy financial need of a Participant if
all of the following requirements are satisfied:


 


(i)                                     the distribution will not be in excess of
(A) the amount of the immediate and heavy financial need of the
Participant, plus (B) such amount as the Administrative Committee deems
necessary to provide for federal, state and local income and penalty taxes
which may reasonably be anticipated to result from the distribution;


 


(ii)                                  the Participant is unable to satisfy the
need by borrowing from commercial sources on reasonable commercial terms;


 


(iii)                               the Participant has made reasonable liquidation of his
or her assets;


 


(iv)                              the Participant has obtained all
distributions, other than hardship distributions, and all nontaxable loans
currently available under all plans maintained by the Employer and the
Affiliates;


 


(v)                                 the Participant’s Elective 401(k) Deferrals
and any other elective contributions and employee contributions, to the Plan
and all other plans maintained by the Employer (as defined in Treas. Reg.
§1.401(k)-1(d)(3)(iv)(F)) will be suspended for at least 6 months after receipt
of the hardship distribution;


 


(vi)                              Effective for Plan Years beginning on or
before December 31, 2001, the Participant may not make Elective 401(k) Deferrals
for the Participant’s taxable year immediately following the taxable year of
the hardship distribution in excess of the applicable limit under Code Section 402(g) for
such next taxable year.


 


(c)                                  Effective as of January 1, 2002, Section 6.4
shall apply with respect to the minimum required distributions under Code Section 401(a)(9).


 


6.2.3                        [Reserved]


 


6.2.4                        Prior to Termination of Employment, a Participant may
elect to withdraw all or any part of his or her Rollover Contributions
Subaccount; provided, however, that any such withdrawal shall be permitted only
if Spousal Consent to the withdrawal is obtained within 90 days prior to the
date of the withdrawal, and provided, further, that any such withdrawal shall
be subject to such rules and procedures as the Administrative Committee
may establish.


 


6.3                                 Loans


 


6.3.1                        A Participant or Beneficiary who is a “party in
interest” within the meaning of ERISA Section 3(14) may submit an
application to the Administrative Committee to borrow from his or her Account
an amount which, when added to the outstanding balance of all other loans to
the Participant from all qualified plans of the Employer and Affiliates, is not
in excess of the lesser of:


 


38

















 


(a)                                  $50,000, reduced by the excess, if any,
of (i) the highest outstanding balance of loans from the Plan or any other
qualified retirement plan maintained by the Employer or an Affiliate during the
one-year period ending on the day before the date on which such loan was made,
over (ii) the outstanding balance of any such other loan on the date on
which the loan is made, or


 


(b)                                 50% of the vested portion of his or her
Account Balance.


 


6.3.2                        If
approved, each such loan shall comply with the following conditions:


 


(a)                                  It shall be evidenced by a negotiable
promissory note.


 


(b)                                 The rate of interest payable on the
unpaid balance of such loan shall be a reasonable rate determined by the
Administrative Committee.


 


(c)                                  The loan, by its terms, must require
substantial level amortization of repayments (to be made not less frequently
than quarterly) within five years; provided, however, that if the proceeds of
the loan are used to acquire any dwelling unit which, within any reasonable
time (determined at the time the loan is made), will be used as the principal
residence of the Participant, the repayment schedule may be for a reasonable
term in excess of five years.


 


(d)                                 In the event of a default, foreclosure on the
promissory note will not occur until a distributable event occurs under Article VI
or Article VIII. Notwithstanding the foregoing, upon the failure of a
Participant to make loan payments because of the bankruptcy of the Participant
or some other event of default set forth in the promissory note, or upon the
occurrence of a distributable event under Article VI or Article VIII,
such loan will become due and payable, and the unpaid balance of such loan,
including any unpaid interest, may, in the Administrative Committee’s
discretion, be charged against the Participant’s Account Balance. The unpaid
balance of such loan, including unpaid interest, shall be charged
against the Participant’s Account Balance before any distribution to the
Participant or a Beneficiary.


 


(e)                                  The loan shall be adequately secured;
provided however, that not more than 50% of the Participant’s vested Account
Balance shall be used as security for a loan.


 


(f)                                    A Participant must obtain Spousal Consent
to any loan within the 90-day period prior to the time any portion of the
Participant’s Account Balance is used to secure the loan. A new Spousal Consent
must be obtained in the event the loan is renegotiated, extended, renewed, or
otherwise revised.


 


6.3.3                        Any loan of a Participant shall be charged solely
against the Account of the borrowing Participant. Principal and interest payments
with respect to the loan shall be credited solely to the Account of the
borrowing Participant from which the loan was made. Any loss caused by
nonpayment or other default on a Participant’s loan obligations shall be borne
solely by that Account.


 


6.3.4                        The Administrative Committee may adopt written rules and
procedures for loans which are hereby incorporated by reference.


 


39

















 


6.3.5                        Loans shall be made available to all Participants on a
reasonably equivalent basis, except that the Administrative Committee may make
reasonable distinctions based upon creditworthiness, other obligations of the
Participant, the ability to repay through payroll deductions and other factors
that may adversely affect the ability to assure repayment through payroll
deduction.


 


6.3.6                        Plan loans under this Section 6.3 shall be
administered in accordance with Code Section 72(p) and the
regulations thereunder.


 


6.4                                 Minimum Required Distributions


 


6.4.1                        General Requirements


 


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


 


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


 


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


 


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


 


6.4.2                        Time and Manner of Distribution


 


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


 


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


 


(i)                                     If the Participant’s Surviving Spouse is
the Participant’s sole designated beneficiary, then, except as provided in Article VIII,
distributions to the Surviving Spouse will begin by December 31 of the
calendar year immediately following the calendar year 


 


40
















 


in which the Participant died, or by December 31 of the calendar
year in which the Participant would have attained age 70 1⁄2, if later.


 


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


 


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


 


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


 


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


 


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


 


6.4.3                        Required Minimum Distributions During Participant’s
Lifetime


 


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


 


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


 


41

















 


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


 


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


 


6.4.4                        Required Minimum Distributions After Participant’s
Death


 


(a)                                  Death On or After Date Distributions
Begin


 


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


 


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


 


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


 


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


 


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


 


42

















 


expectancy calculated using the age of the Participant in the year of
death, reduced by one for each subsequent year.


 


(b)                                 Death Before Date Distributions Begin.


 


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


 


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


 


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


 


6.4.5                        Definitions


 


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


 


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


 


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


 


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


 


43

















 


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


 


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


 


44

















 


ARTICLE
VII


FORMS OF PAYMENT OF ACCOUNTS


 


7.1                                 Methods of Distribution


 


The “Normal Form” of benefit
for all Participants shall be a lump sum distribution. Distributions from a
Participant’s vested Account under Article VI (other than a loan), shall
be distributed in the Normal Form unless the Participant elects to receive
his or her benefit in monthly, quarterly or annual installments, payable over
any period not exceeding the life expectancy of the Participant or the joint
life expectancies of the Participant and the Participant’s designated
Beneficiary.


 


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


 


Distributions shall be
subject to the requirements of Code Section 401(a)(9).


 


7.2                                 Election of Optional Forms


 


7.2.1                        An optional form of benefit payment provided for in Section 7.1
may be elected in accordance with procedures established by the Administrative
Committee, which are hereby incorporated by reference.


 


7.2.2                        [Reserved]


 


7.2.3                        [Reserved]


 


7.2.4                        [Reserved]


 


7.3                                 Direct Rollovers


 


7.3.1                        Notwithstanding any provision in this Plan to the
contrary, a Participant or a Beneficiary who is the Surviving Spouse of a
Participant may elect to have all or a portion of any amount payable to him or
her from the Plan which is an “eligible rollover distribution” (as defined in Section 7.3.2
below) transferred directly to an “eligible retirement plan” (as defined in Section 7.3.2
below).  Without limiting the generality
of the foregoing, the Administrative Committee shall be permitted to allow a
direct rollover of a Participant’s loan under the Plan (and related promissory
note) to a qualified trust described in Code Section 401(a) or a
qualified annuity plan described in Code Section 403(a).


 


45

















 


Effective
as of January 1, 2008, a distributee may elect to have an eligible
rollover distribution paid directly to a Roth IRA (as defined in Code Section 408A);
provided, however, for taxable years beginning prior to January 1, 2010, a
distributee shall not be permitted to make a qualified rollover contribution
(as defined in Code Section 408A(e)) from the Plan to a Roth IRA if, for
the year the eligible rollover distribution is made, the Participant has a
modified adjusted gross income exceeding $100,000 or is married and files a
separate return (as provided in Code Section 408A(c)(3)(b)).  Any such election shall be made in accordance with
such uniform rules and procedures as the Administrative Committee may
prescribe from time to time as to the time and manner of the election in
accordance with Code Section 401(a)(31).


 


7.3.2                        Definitions for purposes of this Section 7.3


 


(a)                                  “Eligible rollover distribution” shall
mean any distribution of all or any portion of the balance to the credit of the
distributee other than: (1) any distribution that is one of a series of
substantially equal periodic payments (not less frequently than annually) made
for the life (or life expectancy) of the distributee or the joint lives (or joint
life expectancies) of the distributee and the distributee’s designated
beneficiary; (2) any distribution for a specified period of ten years or
more; (3) any distribution to the extent such distribution is required
under Code Section 401(a)(9); or (4) the portion of any distribution
that is not includable in gross income. 
Hardship withdrawals under Section 6.2.2 shall not be eligible
rollover distributions, and the distributee may not elect to have any portion
of such a distribution paid directly to an eligible retirement plan.


 


(b)                                 “Eligible retirement plan” shall mean,
with respect to a Participant, an individual retirement account or annuity
described in Code Section 408(a) or 408(b)(“IRA”), an annuity plan
described in Code Section 403(a) or a qualified plan described in
Code Section 401(a), that accepts the distributee’s eligible rollover
distribution. An eligible retirement plan shall also mean an annuity contract
described in Section 403(b) of the Code and an eligible plan under Section 457(b) of
the Code which is maintained by a state, political subdivision of a state, or
any agency or instrumentality of a state or political subdivision of a state
and which agrees to separately account for amounts transferred into such plan
from this Plan.


 


46

















 


ARTICLE
VIII


DEATH BENEFITS


 


8.1                                 Payment of Account Balances. 
In the event of the death of a Participant while an Employee, the
Participant’s entire Account Balance shall be payable to his or her
Beneficiary. In the event of the death of a Participant after Termination of
Employment but before his or her Benefit Commencement Date, the Participant’s
vested Account Balance shall be payable to his or her Beneficiary. If Section 8.1.2
does not apply, benefits shall be payable as soon as practicable after the
Participant’s death in a lump sum distribution unless the Beneficiary instead
elects one of the optional forms of benefit available under Section 7.1.
In the event of a Participant’s death after his or her Benefit Commencement
Date, any unpaid vested Account Balance shall be payable in accordance with the
form of benefit elected by the Participant under Article VII.


 


8.2                                 Beneficiary


 


8.2.1                        Subject to Sections 8.2.2, 8.2.3, 8.2.4, and 8.2.5
below, a Participant may, with Spousal Consent (if married), designate a person
or persons as his or her Beneficiary by filing a written designation of
Beneficiary with the Administrative Committee in the time and manner
established by the Committee. If no valid designation of Beneficiary is in
effect at the time of the Participant’s death, or if the designated Beneficiary
does not survive the Participant, the Beneficiary shall be the Participant’s
Surviving Spouse or, if there is no Surviving Spouse, the Participant’s estate.
For this purpose, if the Participant and the Beneficiary die simultaneously, or
if there is not sufficient evidence to establish who died first, the
Participant shall be deemed to have survived the Beneficiary.


 


8.2.2                        [Reserved]


 


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


 


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


 


8.3                                 Required Commencement


 


Notwithstanding any other provision of the Plan to
the contrary, if a Participant dies before his or her Benefit Commencement
Date, the Participant’s entire interest must be distributed within five years
after the Participant’s death, except that if the designated Beneficiary is the
Participant’s Surviving Spouse, then distributions must begin (a) within
one year of the Participant’s death, or (b) the date the Participant would
have attained age 70-1/2.


 


47

















 


ARTICLE
IX


FIDUCIARIES


 


9.1                                 Named Fiduciaries


 


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


 


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


 


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


 


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


 


9.2                                 Employment of Advisers


 


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


 


9.3                                 Multiple Fiduciary Capacities


 


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


 


9.4                                 Payment of Expenses


 


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


 


9.5                                 Indemnification


 


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


 


48

















 


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


 


49

















 


ARTICLE
X


TRUSTEE AND TRUST FUND


 


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


 


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


 


10.3                           Exclusive Benefit. 
Except as provided in Section 3.10, the Trust shall be maintained
for the exclusive purpose of providing Plan benefits to Participants and their
beneficiaries and paying the expenses of administration of the Plan and the
Trust to the extent not paid by the Employer.


 


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


 


50
















 


ARTICLE
XI


PLAN ADMINISTRATION


 


11.1                           The Administrative Committee


 


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


 


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


 


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


 


11.2                           Administrative Committee Powers and
Duties


 


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


 


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


 


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


 


(c)                                  To select the Investment Funds;


 


51

















 


(d)                                 To appoint one or more insurance
companies;


 


(e)                                  To appoint one or more Investment
Managers;


 


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


 


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


 


(h)                                 To authorize disbursements from the
Trust;


 


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


 


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


 


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


 


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


 


(m)                               To establish such written procedures as
it shall deem necessary or proper to determine the qualified status, pursuant
to Code Section 414(p) of any domestic relations order received by
the Administrative Committee which affects the right of a Participant and any
alternate payee to payment of benefits under the Plan, and to administer
distributions pursuant to any domestic relations order which the Administrative
Committee determines to be a qualified domestic relations order within the
meaning of Code Section 414(p);


 


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


 


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


 


11.3                           Claims Procedure


 


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


 


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


 


52

















 


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


 


(i)                                     the specific reasons for the decision;


 


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


 


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


 


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


 


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


 


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


 


(d)                                 The Administrative Committee shall send the
Participant or Beneficiary written notice of its decision within sixty (60)
days after the Administrative Committee receives the request for review. The
review period may be extended to one hundred twenty (120) days if the
Administrative Committee notifies the claimant within the initial sixty (60)
day period that special circumstances exist which require an extension of the
review period. The Administrative Committee’s written decision shall set forth
the specific reasons for the decision and the Plan provision on which the
decision is based. The Administrative Committee’s written decision
shall also include a statement that the claimant is entitled to receive, upon
request and free of charge, reasonable access to, and copies of, all documents,
records, and other information relevant to the claimant’s claim for benefits,
and a statement of the claimant’s right to bring an action under ERISA Section 502(a).
All such decisions of the Administrative Committee shall be final, conclusive
and binding upon all Participants, Beneficiaries, and other interested persons.
If no decision is received after sixty (60) days, the Participant should deem
the claim on review denied.


 


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


 


53

















 


Department of Labor regulations (such procedures are hereby fully
incorporated herein by this reference).


 


11.4                           Delegation of Responsibility


 


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


 


54

















 


ARTICLE
XII


MANAGEMENT, CONTROL AND
INVESTMENT OF PLAN ASSETS


 


12.1                           Investment Funds


 


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


 


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


 


12.2                           Valuation of Accounts


 


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


 


12.3                           Investment in Insurance Contract


 


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


 


12.4                           The Investment Manager


 


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


 


55

















 


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


 


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


 


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


 


12.5                           Compensation


 


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


 


56

















 


ARTICLE
XIII


PLAN AMENDMENT OR TERMINATION


 


13.1                           Plan Amendment


 


The Company shall have the right at any time to
amend the Plan, by an instrument in writing, effective retroactively or
otherwise, provided that no such amendment shall have any of the effects
specified in Section 13.2.


 


13.2                           Limitations of Plan Amendment


 


No Plan amendment shall:


 


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


 


(b)                                 decrease the Account Balance of any
Participant or his or her Beneficiary under the Plan;


 


(c)                                  reduce the vested percentage of any
Participant;


 


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


 


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


 


(i)                                     sixty days after the amendment is
adopted;


 


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


 


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


 


13.3                           Right of the Company to Terminate Plan


 


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


 


57

















 


13.4                           Effect of Partial or Complete Termination


 


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


 


13.4.2                  As of the date of a “complete termination” of the Plan, each affected
Participant who is then an Employee shall become 100% vested in his or her
Account Balance, and distributions shall be made as soon as practicable
thereafter, as determined by the Administrative Committee, in accordance with Article VII;
provided, however, if the Company or an Affiliate maintains another “alternative
defined contribution plan” (other than an employee stock ownership plan as
defined in Code Section 4975(e)(7), a simplified employee pension, a
SIMPLE IRA as defined in Code Section 408(p), a contract or plan under
Code Section 403(b), and a plan under Code Section 457), no 401(k) Subaccounts
shall be distributed solely in connection with the Plan’s termination.  For purposes this paragraph, a plan is an “alternative
defined contribution plan” only if it exists at any time during the period
beginning on the date of Plan termination and ending 12 months after
distribution of all assets from the terminated Plan.  However, if at all times during the 24-month
period beginning 12 months before the date of Plan termination, fewer than 2%
of the employees who were eligible under this Plan as of the date of Plan
termination are eligible under the other defined contribution plan, the other
plan is not an alternative defined contribution plan.


 


58

















 


ARTICLE
XIV


MISCELLANEOUS PROVISIONS


 


14.1                           Plan Not a Contract of Employment


 


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


 


14.2                           Source of Benefits


 


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


 


14.3                           Benefits Not Assignable


 


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


 


14.4                           Domestic Relations Orders


 


Any other provision of the Plan to the contrary
notwithstanding, the Administrative Committee shall have all powers necessary
with respect to the Plan for the proper operation of Code Section 414(p) with
respect to qualified domestic relations orders referred to in Section 14.3,
including, but not limited to, the power to establish all necessary or
appropriate procedures, to authorize the establishment of new accounts with
such assets and, subject to such investment control by the Administrative
Committee as the Administrative Committee may deem appropriate, and the Administrative
Committee may decide upon and make direct appropriate distributions therefrom.
To the extent provided in a qualified domestic relations order, distribution of
any portion of a Participant’s vested Account Balance allocated to an alternate
payee may be made whether or not the Participant has terminated Employment or
is otherwise eligible to receive a distribution. Effective as of April 6,
2007, a domestic relations order shall not fail to be treated as a qualified
domestic relations order, pursuant to this Section 14.4, solely because (1) the
order is issued after, or revises, another domestic relations order or
qualified domestic relations order, and/or (2) solely because of the time
at which it is issued; provided, however, any such domestic relations order
shall be subject to the same requirements and protections that apply to
qualified domestic relations orders under ERISA Section 206(d)(3).


 


14.5                           Benefits Payable to Minors, Incompetents
and Others


 


In the event any benefit is payable to a minor or to
a person otherwise under a legal disability, or who, in the sole discretion of
the Administrative Committee, is by reason of 


 


59

















 


advanced age, illness or other physical or mental incapacity incapable
of handling and disposing of his or her property, or otherwise is in such
position or condition that the Administrative Committee believes that he or she
could not utilize the benefit for his or her support or welfare, the
Administrative Committee shall have discretion to apply the whole or any part
of such benefit directly to the care, comfort, maintenance, support, education
or use of such person, or to pay the whole or any part of such benefit to the
parent of such person; to the guardian, committee, conservator or other legal
representative, wherever appointed, of such person; the person with whom such
person is residing; or to any other person having the care and control of such
person. The receipt by any such person to whom any such payment on behalf of
any Participant or Beneficiary is made shall be a sufficient discharge
therefor.


 


14.6                           Merger or Transfer of Assets


 


14.6.1                  Subject to Section 14.6.2, the Company may direct that the Plan be
merged or consolidated with, or may transfer all or a portion of its assets and
liabilities to, another plan or may receive assets and liabilities from another
plan; without limiting the generality of the foregoing, the Company may direct
that the Plan accept from, or transfer to, another plan any outstanding plan
loan balances.  The Administrative
Committee may take whatever action it deems necessary or appropriate to effect
any such merger, consolidation or transfer. Any optional forms of benefit or
other special provisions applicable to a Participant for whom an account
balance has been transferred to this Plan from another plan shall be set forth
in an Appendix hereto.


 


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


 


14.7                           Participation in the Plan By an Affiliate


 


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


 


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


 


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


 


14.8                           Action by the Company or a Participating
Affiliate


 


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


 


60
















 


14.9                           Provision of Information


 


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


 


14.10                     Notice of Address


 


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


 


14.11                     Controlling Law


 


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


 


14.12                     Military Service


 


Notwithstanding any provision of this Plan to the
contrary, effective as of December 12, 1994, contributions, benefits, and
service credit with respect to qualified military service will be provided in
accordance with Code Section 414(u).


 


14.13                     Conditional Adoption


 


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


 


14.14                     Word Usage and Article and Section References


 


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


 


14.15                     Effect of Mistake


 


In the event of a mistake or misstatement as to the
age, eligibility, participation of an Eligible Employee, Vesting Service, the
amount of contributions made by or on behalf of a 


 


61

















 


Participant or the amount of distributions made or to be made to a
Participant or Beneficiary, the Administrative Committee shall, to the extent
it deems it possible, make the necessary adjustments (including, but not
limited to, recoupment, reduction in benefit payments, offset of benefit
payments or return of overpayments) to grant to such Participant or Beneficiary
the credits or distributions to which he is properly entitled under the Plan.


 


62

















 


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


 


	
   

  	
  Rockwood Specialties Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  



 


63

















 


SUPPLEMENT A


 


Merger of the CeramTec NA
Innovative Ceramic Engineering Corp. portion


of the


MG North America Holdings Inc.
Saving Plan


 


A-1                            Introduction. 
Effective July 31, 2004 (the “merger date”), plan assets and
liabilities related to Ceram Tec NA Innovative Ceramic Engineering Corp. (“Ceram
Tec”) participants and beneficiaries under the MG North America Holdings Inc.
Savings Plan (the “MG Savings Plan”) shall be spun-off and merged into the
Plan.  The merger of the Ceram Tec
portion of the MG Savings Plan into the Plan (and any resulting transfer of
assets) shall comply with Sections 401(a)(12), 411(d)(6), and 414(l) of
the Code and the regulations thereunder. 
The purpose of this Supplement A is to provide for the plan spin-off and
merger.  Each participant and beneficiary
in the Ceram Tec portion of the MG Savings Plan shall be referred to herein as
a “Supplement A member.”


 


A-2                            Transfer of Account Balances. 
As of the merger date, liabilities equal to the aggregate account
balances, as adjusted through the merger date in accordance with the provisions
of the MG Savings Plan, of each Supplement A member shall be transferred to the
Plan and shall be credited to corresponding accounts established for each such
Supplement A member under the Plan. 
Thereafter, such balances shall be subject to the terms and conditions
of the Plan, except as otherwise provided herein in this Supplement A.  The accounts of the Supplement A members
under this Plan shall be adjusted for earnings, gains, and losses after such
accounts have been invested in the investment funds as provided in Paragraph
A-3 below.


 


A-3                            Transfer of Assets. 
On, or as soon as practicable following, the merger date, the assets of
the trust that serves as the funding vehicle for the Ceram Tec portion of the
MG Savings Plan shall be transferred to the Profit-Sharing/401(k) Plan for
Employees of Rockwood Specialties Inc. Trust. 
Such transfers shall be in cash, except that promissory notes related to
Supplement A members’ loans from the MG Savings Plan shall be transferred
in-kind.  Such transferred assets (other
than promissory notes) shall be invested in the investment funds designated by
the Administrative Committee on or as soon as practicable following the
transfer of assets to the Profit-Sharing/401(k) Plan for Employees of
Rockwood Specialties Inc. Trust.


 


A-4                            Participation in the Plan. 
Each Supplement A member who is employed by an Employer on the merger
date shall become a member of the Plan on the merger date, subject to the
conditions and limitations of the Plan, except as otherwise provided herein in
this Supplement A.  Each other Supplement
A member shall, on and after the merger date, be treated as an inactive member
or a beneficiary (whichever is applicable) of the Plan, subject to the
conditions and limitations of the Plan, except as otherwise provided herein in
this Supplement A.


 


A-5                            Contributions under the Plan. 
Each Supplement A member who becomes a participant under the Plan shall
be eligible to make Elective 401(k) Deferrals as provided under Section 3.1.2
of the Plan.  Each Supplement A member
who becomes a participant under the Plan shall be eligible for an Employer
Matching Contribution after three months of such participation in the Plan, in
an amount equal to the following:


 


64

















 


200%
of each Supplement A member’s Elective 401(k) Deferrals not exceeding 1%
of the Supplement A member’s Compensation for each Plan Year, plus 100% of the
Supplement A member’s Elective 401(k) Deferrals that exceed 1% but do not
exceed 2% of the Supplement A member’s Compensation that Year, plus 25% of the
Supplement A member’s Elective 401(k) Deferrals that exceed 2% but no more
than 6% of the Supplement A member’s Compensation for that Year, for a maximum
Employer Matching Contribution of 4% of the Supplement A member’s Compensation
for that Plan Year.


 


Effective
as of January 1, 2007, each Supplement A member who becomes a participant
under the Plan shall be eligible for an Employer Matching Contribution after
three months of such participation in the Plan, in an amount equal to 50% of
each Supplement A member’s Elective 401(k) Deferrals that do not exceed 6%
of the Supplement A member’s Compensation each Plan Year, for a maximum
Employer Matching Contribution of 3% of the Supplement A member’s Compensation
for that Plan Year.


 


Effective January 1, 2007, Supplement A members
shall be eligible for Profit-Sharing Contributions as otherwise provided under Section 3.1.4
of the Plan.


 


A-6                            Loans.  Any
outstanding loan on the merger date that had been made to a Supplement A member
under the MG Savings Plan shall be maintained on after that date under the Plan
until all amounts of principal and interest thereon have been repaid.  The terms and conditions relating to such
outstanding loans of Supplement A members will continue as in existence prior
to merger date.


 


A-7                            In-Service Withdrawals. 
On and after the merger date, a Supplement A member (other than a
beneficiary) may obtain any in-service withdrawal described in Article VI
of the Plan from such member’s accounts, including any balances attributable to
transferred MG Savings Plan balances, subject to all applicable Plan
provisions.


 


A-8                            Administrative Committee’s Actions. 
The Administrative Committee shall take such actions as it deems
necessary or desirable to accomplish the plan merger as described in this
Supplement A.


 


A-9                            Transfer of Records. 
On or as soon as practicable after the merger date, the administrator of
the MG Savings Plan shall transfer to the Administrative Committee all the
administrative records maintained with respect to Supplement A members.


 


A-10                      Use of Terms. 
Terms used in this Supplement A shall, unless defined in this Supplement
A or otherwise noted, have the meanings give those terms elsewhere in the Plan.


 


65

















 


SUPPLEMENT B


 


Merger of the Chemetall Foote
Corporation portion


of the


MG North America Holdings Inc.
Savings Plan


 


B-1                              Introduction. 
Effective July 31, 2004 (the “merger date”), plan assets and
liabilities related to the Chemetall Foote Corporation (“Chemetall”)
participants and beneficiaries under the MG North America Holdings Inc. Savings
Plan (the “MG Savings Plan”) shall be spun-off and merged into the Plan.  The merger of the Chemetall portion of the MG
Savings Plan into the Plan (and any resulting transfer of assets) shall comply
with Sections 401(a)(12), 411(d)(6), and 414(l) of the Code and the
regulations thereunder.  The purpose of
this Supplement B is to provide for the plan spin-off and merger.  Each participant and beneficiary in the
Chemetall portion of the MG Savings Plan shall be referred to herein as a “Supplement
B member.”


 


B-2                              Transfer of Account Balances. 
As of the merger date, liabilities equal to the aggregate account
balances, as adjusted through the merger date in accordance with the provisions
of the MG Savings Plan, of each Supplement B member shall be transferred to the
Plan and shall be credited to corresponding accounts established for each such
Supplement B member under the Plan. 
Thereafter, such balances shall be subject to the terms and conditions
of the Plan, except as otherwise provided herein in this Supplement B.  The accounts of the Supplement B members
under this Plan shall be adjusted for earnings, gains, and losses after such
accounts have been invested in the investment funds as provided in Paragraph B-3
below.


 


B-3                              Transfer of Assets. 
On, or as soon as practicable following, the merger date, the assets of
the trust that serves as the funding vehicle for the Chemetall portion of the
MG Savings Plan shall be transferred to the Profit-Sharing/401(k) Plan for
Employee of Rockwood Specialties Inc. Trust. 
Such transfers shall be in cash, except that promissory notes related to
Supplement B members’ loans from the MG Savings Plan shall be transferred
in-kind.  Such transferred assets (other
than promissory notes) shall be invested in the investment funds designated by
the Administrative Committee on or as soon as practicable following the
transfer of assets to the Profit-Sharing/401(k) Plan for Employees of
Rockwood Specialties Inc. Trust.


 


B-4.                           Participation in the Plan. 
Each Supplement B member who is employed by an Employer on the merger
date shall become a member of the Plan on the merger date, subject to the
conditions and limitations of the Plan, except as otherwise provided herein in
this Supplement B.  Each other Supplement
B member shall, on and after the merger date, be treated as an inactive member
or a beneficiary (whichever is applicable) of the Plan, subject to the
conditions and limitations of the Plan, except as otherwise provided herein in
this Supplement B.


 


B-5                              Contributions under the Plan. 
Each Supplement B member who becomes a participant under the Plan shall
be eligible to make Elective 401(k) Deferrals as provided under Section 3.1.2
of the Plan.  Each Supplement C member
who becomes a participant under the Plan shall be eligible for an Employer
Matching Contribution after three months of such participation in the Plan, in
an amount equal to the following:


 


66

















 


100%
of each Supplement B member’s Elective 401(k) Deferrals that do not exceed
3% of the Supplement B member’s Compensation each Plan Year, for a maximum
Employer Matching Contribution of 3% of the Supplement C member’s Compensation
for that Plan Year.


 


Effective January 1, 2007, Supplement B members
shall be eligible for Profit-Sharing Contributions as provided under Section 3.1.4
of the Plan.


 


B-6                              Loans.  Any
outstanding loan on the merger date that had been made to a Supplement B member
under the MG Savings Plan shall be maintained on after that date under the Plan
until all amounts of principal and interest thereon have been repaid.  The terms and conditions relating to such
outstanding loans of Supplement B members will continue as in existence prior
to merger date.


 


B-7                              In-Service Withdrawals. 
On and after the merger date, a Supplement B member (other than a
beneficiary) may obtain any in-service withdrawal described in Article VI
of the Plan from such member’s accounts, including any balances attributable to
transferred MG Savings Plan balances, subject to all applicable Plan
provisions.


 


B-8                              Administrative Committee’s Actions. 
The Administrative Committee shall take such actions as it deems
necessary or desirable to accomplish the plan merger as described in this
Supplement B.


 


B-9                              Transfer of Records. 
On or as soon as practicable after the merger date, the administrator of
the MG Savings Plan shall transfer to the Administrative Committee all the
administrative records maintained with respect to Supplement B members.


 


B-10                        Use of Terms. 
Terms used in this Supplement B shall, unless defined in this Supplement
B or otherwise noted, have the meanings give those terms elsewhere in the Plan.


 


67

















 


SUPPLEMENT C


 


Merger of the Oakite Products, Inc.
portion


of the


MG North America Holdings Inc.
Savings Plan


 


C-1                              Introduction. 
Effective as of July 31, 2004 or as soon as administratively
practicable thereafter (the “merger date”), the plan assets and liabilities
attributable to the Oakite Products, Inc. (“Oakite”) participants and beneficiaries
under the MG North America Holdings Inc. Savings Plan (the “MG Savings Plan”)
shall be spun-off and immediately merged with and into the Plan; provided,
however, the assets and liabilities which are attributable to the
participants who are covered by the collective bargaining agreement between
Oakite and USWA Local Union 2659, as of July 31, 2004, shall remain in the
MG Savings Plan and not be subject to the spin-off and merger transaction with
the Plan.  The merger of the Oakite
portion of the MG Savings Plan into the Plan (and any resulting transfer of
assets) shall comply with all the applicable legal requirements, including
Sections 401(a)(12), 411(d)(6), and 414(l) of the Code and the regulations
thereunder.  The purpose of this
Supplement C is to provide for the plan spin-off and merger.  Each participant and beneficiary in the
Oakite portion of the MG Savings Plan whose account is subject to the spin-off
and merger transaction with the Plan shall be referred to herein as a “Supplement
C member.”


 


C-2                              Transfer of Account Balances. 
As of the merger date, liabilities equal to the aggregate account
balances, as adjusted through the merger date in accordance with the provisions
of the MG Savings Plan, of each Supplement C member shall be transferred to the
Plan and shall be credited to corresponding accounts established for each such
Supplement C member under the Plan. 
Thereafter, such balances shall be subject to the terms and conditions
of the Plan, except as otherwise provided herein in this Supplement C.  The accounts of the Supplement C members
under this Plan shall be adjusted for earnings, gains, and losses after such
accounts have been invested in the investment funds as provided in Paragraph
C-3 below.


 


C-3                              Transfer of Assets. 
On, or as soon as administratively practicable following, the merger
date, the assets of the trust that serves as the funding vehicle for the Oakite
portion of the MG Savings Plan shall be transferred to the Profit-Sharing/401(k) Plan
for Employees of Rockwood Specialties Inc. Trust.  Such transfers shall be in cash, except that
promissory notes related to Supplement C members’ loans from the MG Savings
Plan shall be transferred in-kind.  Such
transferred assets (other than promissory notes) shall be invested in the
investment funds designated by the Administrative Committee on or as soon as
practicable following the transfer of assets to the Profit-Sharing/401(k) Plan
for Employees of Rockwood Specialties Inc. Trust.


 


C-4                              Participation in the Plan. 
Each Supplement C member who is employed by the Employer on July 31,
2004 (or immediately thereafter) shall become a member of the Plan as of such
date, subject to the conditions and limitations of the Plan, except as
otherwise provided herein in this Supplement C. 
Each other Supplement C member shall, on and after the merger date, be
treated as an inactive member or a beneficiary (whichever is applicable) of the
Plan, 


 


68

















 


subject to the conditions and limitations of the Plan,
except as otherwise provided herein in this Supplement C.


 


C-5                              Contributions under the Plan. 
Each Supplement C member who becomes a participant under the Plan shall
be eligible to make Elective 401(k) Deferrals as provided under Section 3.1.2
of the Plan.  Each Supplement C member
who becomes a participant under the Plan shall be eligible for an Employer
Matching Contribution after three months of such participation in the Plan, in
amount equal to the following:


 


100%
of each Supplement C member’s Elective 401(k) Deferrals that do not exceed
3% of the Supplement C member’s Compensation each Plan Year, for a maximum
Employer Matching Contribution of 3% of the Supplement C member’s Compensation
for that Year.


 


Effective January 1, 2005, Supplement C members
shall be eligible for Profit-Sharing Contributions as provided under Section 3.1.4
of the Plan.


 


C-6                              Loans.  Any
outstanding loan on the merger date that had been made to a Supplement C member
under the MG Savings Plan shall be maintained on after that date under the Plan
until all amounts of principal and interest thereon have been repaid.  The terms and conditions relating to such
outstanding loans of Supplement C members will continue as in existence prior
to merger date.


 


C-7                              In-Service Withdrawals. 
On and after the merger date, a Supplement C member (other than a
beneficiary) may obtain any in-service withdrawal described in Article VI
of the Plan from such member’s accounts, including any balances attributable to
transferred MG Savings Plan balances, subject to all applicable Plan
provisions.


 


C-8                              Administrative Committee’s Actions. 
The Administrative Committee shall take such actions as it deems
necessary or desirable to accomplish the plan merger as described in this
Supplement C.


 


C-9                              Transfer of Records. 
On or as soon as practicable after the merger date, the administrator of
the MG Savings Plan shall transfer to the Administrative Committee all the
administrative records maintained with respect to Supplement C members.


 


C-10                        Use of Terms.  Terms
used in this Supplement C shall, unless defined in this Supplement C or
otherwise noted, have the meanings give those terms elsewhere in the Plan.


 


69

















 


SUPPLEMENT D


 


Merger of the Sachtleben
Corporation portion


of the


MG North America Holdings Inc.
Saving Plan


 


D-1                             Introduction. 
Effective July 31, 2004 (the “merger date”), plan assets and
liabilities related to Sachtleben Corporation (“Sachtleben”) participants and
beneficiaries under the MG North America Holdings Inc. Savings Plan (the “MG
Savings Plan”) shall be spun-off and merged into the Plan.  The merger of the Sachtleben portion of the
MG Savings Plan into the Plan (and any resulting transfer of assets) shall
comply with Sections 401(a)(12), 411(d)(6), and 414(l) of the Code and the
regulations thereunder.  The purpose of
this Supplement D is to provide for the plan spin-off and merger.  Each participant and beneficiary in the
Sachtleben portion of the MG Savings Plan shall be referred to herein as a “Supplement
D member.”


 


D-2                             Transfer of Account Balances. 
As of the merger date, liabilities equal to the aggregate account
balances, as adjusted through the merger date in accordance with the provisions
of the MG Savings Plan, of each Supplement D member shall be transferred to the
Plan and shall be credited to corresponding accounts established for each such
Supplement D member under the Plan. 
Thereafter, such balances shall be subject to the terms and conditions
of the Plan, except as otherwise provided herein in this Supplement D.  The accounts of the Supplement D members
under this Plan shall be adjusted for earnings, gains, and losses after such
accounts have been invested in the investment funds as provided in Paragraph
D-3 below.


 


D-3                             Transfer of Assets. 
On, or as soon as practicable following, the merger date, the assets of
the trust that serves as the funding vehicle for the Sachtleben portion of the
MG Savings Plan shall be transferred to the Profit-Sharing/401(k) Plan for
Employees of Rockwood Specialties Inc. Trust. 
Such transfers shall be in cash, except that promissory notes related to
Supplement D members’ loans from the MG Savings Plan shall be transferred
in-kind.  Such transferred assets (other
than promissory notes) shall be invested in the investment funds designated by
the Administrative Committee on or as soon as practicable following the
transfer of assets to the Profit-Sharing/401(k) Plan for Employees of
Rockwood Specialties Inc. Trust.


 


D-4                             Participation in the Plan. 
Each Supplement D member who is employed by an Employer on the merger
date shall become a member of the Plan on the merger date, subject to the
conditions and limitations of the Plan, except as otherwise provided herein in
this Supplement D.  Each other Supplement
D member shall, on and after the merger date, be treated as an inactive member
or a beneficiary (whichever is applicable) of the Plan, subject to the
conditions and limitations of the Plan, except as otherwise provided herein in
this Supplement D.


 


D-5                             Contributions under the Plan. 
Each Supplement D member who becomes a participant under the Plan shall
be eligible to make Elective 401(k) Deferrals as provided under Section 3.1.2
of the Plan.  Each Supplement D member
who becomes a participant under the Plan shall be eligible for an Employer
Matching Contribution after three months of such participation in the Plan, in
an amount equal to the following:


 


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100 %
of each Supplement D member’s Elective 401(k) Deferrals that do not exceed
3% of the Supplement D member’s Compensation each Plan Year, for a maximum
Employer Matching Contribution of 3% of the Supplement D member’s Compensation
for that Plan Year.


 


In
addition, each Supplement D member shall be eligible for a Profit-Sharing
Contribution under the Plan as provided under Section 3.1.4 of the Plan.


 


D-6                             Loans.  Any
outstanding loan on the merger date that had been made to a Supplement D member
under the MG Savings Plan shall be maintained on after that date under the Plan
until all amounts of principal and interest thereon have been repaid.  The terms and conditions relating to such
outstanding loans of Supplement D members will continue as in existence prior
to merger date.


 


D-7                             In-Service Withdrawals. 
On and after the merger date, a Supplement D member (other than a
beneficiary) may obtain any in-service withdrawal described in Article VI
of the Plan from such member’s accounts, including any balances attributable to
transferred MG Savings Plan balances, subject to all applicable Plan
provisions.


 


D-8                             Administrative Committee’s Actions. 
The Administrative Committee shall take such actions as it deems
necessary or desirable to accomplish the plan merger as described in this
Supplement D.


 


D-9                             Transfer of Records. 
On or as soon as practicable after the merger date, the administrator of
the MG Savings Plan shall transfer to the Administrative Committee all the
administrative records maintained with respect to Supplement D members.


 


D-10                       Use of Terms. 
Terms used in this Supplement D shall, unless defined in this Supplement
D or otherwise noted, have the meanings give those terms elsewhere in the Plan.


 


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SUPPLEMENT E


 


MERGER OF THE GLOBAL COLOR
PIGMENTS BUSINESS


EMPLOYEES’ ACCOUNTS IN THE


 


ELEMENTIS WORLDWIDE RETIREMENT
SAVINGS PLAN


 


E-1                               Introduction. 
Effective as of December 10, 2007 (the “Merger Date”), the
plan assets and liabilities related to employees of Elementis Worldwide Inc.
and/or its affiliates who are employed by the Company or a Participating
Affiliate in connection with the closing of the transactions under the Asset
Purchase Agreement between Rockwood Specialties Group, Inc. and Elementis
Holdings Ltd. Dated May 10, 2007 shall be spun-off from the Elementis
Worldwide Retirement Savings Plan (subject to the approval of Elementis
Worldwide Inc.) and merged with and into the Plan (the “Global Pigments
Portion”).  The merger of the Global
Pigments Portion of the Elementis Worldwide Retirement Savings Plan (the “Elementis
Plan”) into the Plan (and any resulting transfer of assets) shall comply
with the applicable requirements under Sections 401(a)(12), 411(d)(6), and 414(l) of
the Code and the regulations thereunder. 
The Elementis Plan was known as the “Elementis America Retirement
Savings Plan” prior to February 8, 2006. The purpose of this Supplement E
is to provide for the plan spin-off and merger of the Global Pigments
Portion.  Each participant and
beneficiary in the Global Pigments Portion of the Elementis Plan shall be
referred to herein as a “Supplement E Member.”


 


E-2                               Transfer of Account Balances.  As of the Merger Date, assets and liabilities
equal to the aggregate account balances, as adjusted through the Merger Date in
accordance with the provisions of the Elementis Plan, of each Supplement E
Member shall be transferred to the Plan and shall be credited to corresponding
accounts established for each such Supplement E Member under the Plan. The
transfer to the Plan shall include any after-tax accounts and outstanding plan
loans (and the promissory notes connected to such plan loans).  Thereafter, such balances and loans shall be
subject to the terms and conditions of the Plan, except as otherwise provided
herein in this Supplement E.  The accounts
of the Supplement E Members under the Plan shall be adjusted for earnings,
gains, and losses after such accounts have been invested in the Investment
Funds as provided in Section E-3 below.


 


E-3                               Transfer of Assets.  On, or as soon as practicable following, the
Merger Date, the assets of the trust that serves as the funding vehicle for the
Global Pigments Portion of the Elementis Plan shall be transferred to the
Trust.  Such transfers shall be in cash,
except that


 


(a)                                  any promissory notes related
to Supplement E Members’ loans from the Elementis Plan, and


 


(b)                                 any shares of Pfizer Inc.
stock related to Supplement E Members’ investment in the Pfizer Stock Fund
under the Elementis Plan,


 


shall be transferred
in-kind.  Such transferred assets (other
than promissory notes and shares of Pfizer Inc. stock) shall be invested in the
Investment Funds designated by the Administrative Committee on or as soon as
practicable following the transfer of assets to the Trust.


 


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E-4                               Participation in the Plan. Each Supplement E Member who is employed by
an Employer on the Merger Date shall become a member of the Plan on the Merger
Date, subject to the conditions and limitations of the Plan.


 


E-5                               After-Tax Contribution Account.  No
after-tax contributions shall be permitted under the Plan; provided, however,
any after-tax contribution accounts transferred to the Plan from the Elementis
Plan as of the Merger Date shall be maintained as “frozen” after-tax accounts (“After-Tax
Contribution Subaccount”) to the extent necessary to account for such
assets.


 


E-6                               Withdrawals from After-Tax Contribution
Subaccount.  A Supplement E Member, while still employed,
may request a withdrawal of all or a portion of his After-Tax Contribution Subaccount
at any time.


 


E-7                               Withdrawals from Rollover Subaccount.  A
Supplement E Member, while still employed, may request a withdrawal of all or a
portion of his Rollover Contributions Subaccount attributable to the amounts
transferred to the Plan from the Elementis Plan as of the Merger Date.


 


E-8                               Withdrawals
of Employer Contributions from Chemicals Subaccount. Any amounts
transferred to the Plan from the Elementis Plan as of the Merger Date which are
attributable to amounts previously transferred to the Elementis Plan from the
Harcros Chemicals Inc. Employee Savings Plan (as in effect through December 31,
1992) shall be maintained in the “Chemicals Subaccount.”  A Supplement E Member, while still employed,
may request a withdrawal of all or a portion of his Chemicals Subaccount
attributable to vested employer contributions and earnings thereon.


 


E-9                               Withdrawals of Employer Contributions from NL
Subaccount.  Any amounts transferred to the Plan from the
Elementis Plan as of the Merger Date which are attributable to amounts
previously transferred to the Elementis Plan from the NL Industries, Inc.
Retirement Savings Plan (as in effect through January 30, 1998) shall be
maintained in the “NL Subaccount.” 
A Supplement E Member, while still employed, may request a withdrawal of
all or a portion of his NL Subaccount attributable to vested employer
contributions and earnings thereon.


 


E-10                         Pfizer Stock Fund


 


E-10.1                Pfizer Stock Fund. Any shares of Pfizer Inc. stock transferred
to the Plan from the Elementis Plan as of the Merger Date shall be maintained
as the “Pfizer Stock Fund.”


 


E-10.2                Investment Elections. Schedule E Members (and any other
Participant) shall not be permitted to elect to have any future contributions,
or the proceeds from any other Investment Fund, invested in the Pfizer Stock
Fund. Also, Schedule E Members may not elect to have any amount that is less
than the full value of their Pfizer Stock Fund investment transferred from the
Pfizer Stock Fund to any other Investment Fund. Finally, any dividends paid
with respect to the Pfizer Stock Fund shall be reinvested in other Investment
Funds in accordance with the Schedule E Members’ most recent instructions
directing the investment of new contributions to the Plan.


 


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E-10.3                Tender Offers.  To
the extent that shares of Pfizer Inc. stock under the Pfizer Stock Fund are
allocated to a Schedule E Member’s Account, the Trustee shall vote or tender
such shares solely in accordance with written instructions furnished to it by
each Schedule E Member (or Beneficiary of a deceased Schedule E Member);
provided that the Trustee shall be responsible for delivery to each Schedule E
Member (or Beneficiary of a deceased Schedule E Member) of all notices, proxies
and proxy soliciting materials related to any such shares.  Any such instructions shall remain in the
strict confidence of the Trustee.  Any
and all fractional shares of Pfizer Inc. stock allocated to a Schedule E Member’s
Account shall be combined with other fractional shares of other Schedule E
Members and shall be voted, to the extent possible, to reflect the direction of
Schedule E Members holding such fractional shares.  Shares, including fractional shares, for
which no voting or tender instructions are received shall not be voted by the
Trustee.


 


E-10.4                In-Kind Distribution Right. If, as of the date a Schedule E Member
terminates his employment, part of his Account is invested in the Pfizer Stock
Fund, and if the Schedule E Member’s benefit is to be paid in the form of a
lump sum, then the Schedule E Member or Beneficiary to whom such payment is
made shall have that portion of the Accounts that is so invested paid in common
stock or shares held in the Pfizer Stock Fund unless the Schedule E Member or
Beneficiary elects to have such portion paid in cash; provided, however, that
cash will be paid in lieu of any fractional shares allocated to the Schedule E
Member’s Account.


 


E-11                         Wayne Profit Sharing Subaccount


 


E-11.1                Wayne Profit Sharing Subaccount. Any assets transferred to the Plan from the
Elementis Plan as of the Merger Date which are attributable to amounts
previously transferred to the Elementis Plan from the New Wayne Chemical
Corporation Profit Sharing Plan (as in effect through December 31, 1992)
shall be maintained in the “Wayne Profit Sharing Subaccount.”


 


E-11.2                Investment Elections. 
Schedule E Members (and any other Participant) shall not be permitted to
elect to have any future contributions, or the proceeds from any other
Investment Fund, invested in any insured contracts held in the Wayne Profit
Sharing Subaccount. Also, Schedule E Members shall not be permitted to transfer
to an Investment Fund any portion of his Wayne Profit Sharing Subaccount that
is held under an insured contract. Any life insurance policies held in the
Wayne Profit Sharing Subaccount shall be continued and will be subject to the
provisions of the Plan.  No new insurance
policies may be purchased under the Plan.


 


E-12                         Vesting. Schedule E Members shall be fully vested in the portion of this
Account consisting of the Global Pigments Portion upon the earliest to occur of
(a) his attainment of age 55; (b) his Disability while actively
employed; (c) his death while actively employed; or (d) his Normal
Retirement Date.


 


E-13                         Loans.  Any outstanding loan on the
Merger Date that had been made to a Supplement E Member under the Elementis
Plan shall be maintained on after that date under the Plan until all amounts of
principal and interest thereon have been repaid.  The terms and conditions relating to such
outstanding loans of Supplement E Members will continue as in 


 


74

















 


existence immediately prior to Merger Date. A Schedule E Member may not
apply to the Administrative Committee for a loan from his NL Subaccount (as
defined in Section E-9).


 


E-14                         Forms of Benefit Payment for Wayne Pension Subaccount, H&C
Subaccount, Northland Subaccount and Chemicals Account


 


E-14.1                Definitions


 


(a)                                  H&C Subaccount. Any assets transferred to the Plan from the
Elementis Plan as of the Merger Date which are attributable to amounts
previously transferred to the Elementis Plan from the Harrisons &
Crosfield (America) Inc. Money Purchase Pension Plan and Trust (as in effect
through December 31, 1992) shall be maintained in the “H&C
Subaccount.”


 


(b)                                 Northland Subaccount. Any assets transferred to the Plan from the
Elementis Plan as of the Merger Date which are attributable to amounts
previously transferred to the Elementis Plan from the Northland Chemical, Inc.
Pension Plan and Trust (as in effect through December 31, 1992) shall be
maintained in the “Northland Subaccount.”


 


(c)                                  Wayne Pension Subaccount.  Any
assets transferred to the Plan from the Elementis Plan as of the Merger Date
which are attributable to amounts previously transferred to the Elementis Plan
from the Wayne Chemical Pension Plan and Trust (as in effect through December 31,
1992) shall be maintained in the “Wayne Pension Subaccount.”


 


E-14.2                Automatic Form of Payment


 


(a)                                  Married Schedule E Members.  If the Schedule E Member is married on his
benefit payment date, the Schedule E Member’s Wayne Pension Account, H&C
Account and Northland Account shall be paid in the form of an annuity for the
joint lives of the Schedule E Member and his spouse with a periodic benefit
payable after the death of the Schedule E Member to the spouse equal to 50% of
the periodic benefit payable to the Schedule E during his lifetime, if such
spouse survives the Schedule E, unless such Schedule E Member elects another
form of payment in the manner described below. 
If the Schedule E Member makes no election, the survivor percentage
shall be 50%.


 


(b)                                 Unmarried Schedule E Members.  If the Schedule E Member is not married on
his benefit payment date, the Schedule E Member’s Wayne Pension Account,
H&C Account and Northland Account shall be paid in the form of an annuity
for the life of the Schedule E Member only, unless he elects another form of
payment in the manner described below.


 


E-14.3                Optional Form of Payment.  A Schedule E Member who is not
subject to the provisions above may elect, in writing, to have his Wayne
Pension Account, H&C Account and Northland Account paid to him in a single
sum.


 


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E-14.4                Spousal Consent Requirement


 


(a)                                  Consent Requirement. A Schedule E Member described in this
subparagraph E-14.4(a) who does not establish to the satisfaction of the
Administrative Committee that he has no spouse on his benefit payment date may
elect to receive a form of benefit other than the automatic form applicable to
the Schedule E Member only if his spouse (or the spouse’s legal guardian if the
spouse is legally incompetent) consents, in the manner described in
subparagraph E-14.4(b) not to receive the automatic form of payment described
in subparagraph E-14.2(a) and to the specific alternative form elected by
the Schedule E Member, or to the Schedule E Member’s right to choose any
alternative form without any further consent by the spouse, or the spouse’s
consent is not required for the reason specified in subparagraph 14.4(c).


 


(b)                                 Form and Content of Spouse’s Consent. A spouse may consent to the designation of
one or more Beneficiaries other than such spouse provided that such consent
shall be in writing, must consent to the specific alternate beneficiary or
beneficiaries designated (or permit beneficiary designations by the Schedule E
Member without the spouse’s further consent), must acknowledge the effect of
such consent, and must be witnessed by a Plan representative or notary
public.  Such spouse’s consent shall be
irrevocable, unless expressly made revocable. 
The consent of a spouse in accordance with this subsection E-14.4(b) shall
not be effective with respect to any subsequent spouse of the Schedule E
Member.


 


(c)                                  Spouse as Beneficiary. A Schedule E Member may designate a
Beneficiary other than his spouse pursuant to Section 8.2 of the Plan if


 


the Schedule E Member has no spouse, or the
Administrative Committee determines that the spouse cannot be located or such
other circumstances exist under which spousal consent is not required, as
prescribed by Treasury regulations.


 


E-14.5                Revocation of Election.  A Schedule E Member may revoke an election to
waive the automatic form of payment described in subparagraph E-14.2(a).  Such revocation may be made at any time during
the election period in which such election can be made.  Such revocation shall not void any
prospectively effective consent given by his spouse in connection with the
revoked election.


 


E-14.6                Explanations to Schedule E Members.  Each Schedule E Member
described in this section E-14 shall receive, no less than 30 days and no more
than 180 days before the date his benefits are to begin, a written explanation
of:


 


(a)                                  the terms and conditions of the automatic form
of payment and each alternative form of payment available to the Schedule E
Member, including information explaining the relative values of each form of
payment;


 


(b)                                 the Schedule E Member’s right to waive the
automatic form of payment and the effect of such waiver;


 


76

















 


(c)                                  the rights of the Schedule E Member’s spouse
with respect to such waiver; and


 


(d)                                 the right to revoke an election to receive an
alternative form of payment and the effect of such revocation.


 


Notwithstanding
the foregoing, the Schedule E Member’s benefit payment date may be less than 30
days after the explanation described in this Section is provided if (A) the
Schedule E Member is given notice of his right to a 30-day period in which to
consider whether to (i) waive the normal form of benefit and elect an
optional form and (ii) to the extent applicable, consent to the
distribution; (B) the Schedule E Member affirmatively elects a
distribution and a form of benefit and the spouse, if necessary, consents to
the form of benefit elected; (C) the Schedule E Member is permitted to
revoke his affirmative election at any time prior to his benefit payment date
or, if later, the expiration of a 7-day period beginning on the day after the
explanation described in this section is provided to the Schedule E Member; (D) the
benefit payment date is after the date the explanation described in this
section is provided to the Schedule E Member; and (E) distribution to the
Schedule E Member does not commence before the expiration of the 7-day period
described in clause (C) above.


 


E-14.7                Death Benefits from the Wayne Pension Subaccount, H&C Subaccount,
Northland Subaccount and Chemicals Subaccount


 


(a)                                  If the Schedule E Member dies after his
benefit payment date, death benefits, if any, from the Schedule E Member’s
Wayne Pension Subaccount, H&C Subaccount, Northland Subaccount and
Chemicals Subaccount shall be determined by the form of payment in effect for
the Schedule E Member at the time of his death.


 


(b)                                 If the Schedule E Member dies before his
benefit payment date and his spouse is the Beneficiary with respect to all or a
portion of his Wayne Pension Subaccount, H&C Subaccount and Northland
Subaccount, death benefits payable from his Wayne Pension Subaccount, H&C
Subaccount and Northland Subaccount to his surviving spouse shall be paid in
the form of life annuity for the spouse, unless the spouse elects, in writing
in the manner prescribed by the Administrative Committee, to receive the Wayne
Pension Subaccount in the form of a single sum.


 


(c)                                  If the Schedule E Member dies before his
benefit payment date and has designated a Beneficiary other than his spouse for
all or a portion of his Chemicals Subaccount, death benefits payable from his
Chemicals Subaccount to such Beneficiary shall be paid, at the election of the
Schedule E Member or the Beneficiary, in the form of a single sum or quarterly
installments over five (5) years.


 


E-14.8                Beneficiary Designation.
An election to designate one or more Beneficiaries other than the Schedule E
Member’s spouse for the Schedule E Member’s Wayne Pension Subaccount, H&C
Subaccount and Northland Subaccount shall become invalid on January 1 of
the calendar year in which the Schedule E Member attains age 35.  The Schedule E Member’s spouse shall, on such
date, become the Beneficiary with respect to the Schedule E Member’s 


 


77

















 


Wayne Pension Subaccount, H&C Subaccount and Northland Subaccount,
unless the Schedule E Member subsequently designates, in accordance with the
provisions of this Section and Plan, one or more Beneficiaries with
respect to his Wayne Pension Subaccount, H&C Subaccount and Northland
Subaccount.


 


E-14.9                Qualified Domestic Relations Orders. The benefit payable to an alternate payee shall be paid in the form
of a single sum in cash, except that the alternate payee may elect to receive
the portion of the benefit, if any, attributable to a Schedule E Member’s Wayne
Pension Subaccount, H&C Subaccount, Northland Subaccount and Chemicals
Subaccount distributed in any form provided under Section E-14 with
respect to such account to the extent permitted by section 401(a)(9) of
the Code and regulations issued thereunder.


 


E-15                         Distribution Restrictions on Wayne Pension Subaccount. A Schedule E Member shall not be permitted
to take an age 59-1/2 or hardship distribution from his Wayne Pension
Subaccount.


 


E-16                         Elimination of Forms of Benefit Payments. Any and all forms of distribution
applicable to the Global Pigments Portion are eliminated as of the Merger Date,
except to the extent the form of benefit distribution is provided in this
Schedule E and/or the Plan. This provision shall be interpreted in a manner
consistent with the requirements of Code Section 411(d)(6)(E).


 


E-17                         Administrative Committee Actions. The Administrative Committee shall take such actions as it deems
necessary or desirable to accomplish the plan merger as described in this
Supplement E.


 


E-18                         Transfer of Records.  On or as soon as practicable after the Merger
Date, the administrator of the Elementis Plan shall transfer to the
Administrative Committee all the administrative records maintained with respect
to Supplement E Members.


 


E-19                         Use of Terms.  Terms used in this Supplement E shall, unless
defined in this Supplement E or otherwise noted, have the meanings give those
terms elsewhere in the Plan.


 


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