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Exhibit 10.9
BONUS REPLACEMENT
RETIREMENT PLAN
OF ARMSTRONG WORLD
INDUSTRIES, INC.
As Amended and
Restated
Effective January 1,
2007
BONUS REPLACEMENT
RETIREMENT PLAN
OF ARMSTRONG WORLD
INDUSTRIES, INC.
Foreword
Effective January 1,
1998, Armstrong World Industries, Inc. adopted the Bonus
Replacement Retirement Plan of Armstrong World Industries, Inc.
(the “Plan”) for the benefit of certain of its
employees.
The Plan hereinafter set
forth has been approved by the Board of Directors of Armstrong
World Industries, Inc. and is intended to conform to the
requirements of the Employee Retirement Income Security Act of
1974, as amended, and to qualify as a profit sharing plan under
Section 401(a) of the Internal Revenue Code of 1986, as
amended, or any other applicable sections thereof.
Since January 1, 1998,
the Plan was amended as follows:
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The Plan was
amended in December of 2002, but effective January 1, 1998, in
response to IRS comments to include specific changes to the
definition of compensation used in applying the limitations of
Article XI, and to add language addressing the treatment of
military service.
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Effective as
of January 1, 2003, Armstrong Wood Products, Inc. (including
its divisions AFP Wood Flooring and Armstrong Cabinet Products) was
designated as a Participating Company and coverage was extended to
include certain employees of AFP Wood Flooring and Armstrong
Cabinet Products Divisions of Armstrong Wood Products, Inc. In
addition, effective January 1, 2003, the Asset Manager Funds
were removed from the Plan and the Fidelity Equity Income Fund, the
Fidelity Intermediate Bond Fund, and the Fidelity Freedom Funds
substituted in lieu thereof.
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Effective January 1,
2003, the Plan was amended and restated to incorporate amendments
adopted since the last restatement of the Plan. Since
January 1, 2003, the Plan was amended from time to time to
make various design and statutory changes, including the
following:
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Effective
March 1, 2005, the Plan was amended to remove the Money Market
Fund as an available investment alternative.
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Effective
January 1, 2007, the Plan was amended to remove the existing
vesting schedule and 100% vest all contributions made to the Plan
and to modify the default investment under the plan to be a target
retirement Balanced Fund.
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Unless a different date is
specified in the Plan, a Plan amendment or in resolutions of the
Retirement Committee or the Board of Directors of the Company, the
Plan is hereby amended and restated effective as of January 1,
2007 to incorporate previous amendments to the Plan, with the
intent that the amended and restated Plan shall be submitted to the
Internal
Revenue Service for an advance
determination that the Plan continues to be qualified under Code
Section 401(a). However, any Plan provision necessary to
comply with the requirements of federal legislation or regulations,
which requirements have an earlier required effective date, shall
be effective retroactively to the date required by the applicable
law or regulation. In any case where a provision of the Plan has an
effective date later than January 1, 2007, the language of the
Plan as in effect immediately prior to this restatement shall
continue to apply until such later effective date.
The rights to benefits of any
eligible employee whose employment terminates prior to the
effective date of any amendment to the Plan, and the rights of the
Beneficiary of such eligible employee, shall be determined solely
by the provisions of the Plan under which such eligible employee is
covered, if any, as in effect at the time of such termination of
employment, unless otherwise specifically provided
herein.
BONUS REPLACEMENT
RETIREMENT PLAN
OF ARMSTRONG WORLD
INDUSTRIES, INC.
Table of
Contents
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Page No. |
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ARTICLE I Definitions
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1 |
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ARTICLE II Eligibility, Membership,
and Beneficiary Designation
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4 |
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2.1
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Eligibility |
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4 |
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2.2
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Suspension of Membership due to Transfer to Non-Covered
Employment |
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4 |
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2.3
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Beneficiary Designation |
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4 |
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ARTICLE III Company
Contributions
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6 |
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3.1
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Company
Contributions |
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6 |
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3.2
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Return of
Contributions |
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6 |
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3.3
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Vesting
of Member’s Account and Forfeitures |
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7 |
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ARTICLE IV Investment of
Contributions
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8 |
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4.1
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Investment Funds |
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8 |
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4.2
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Investment Elections |
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9 |
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4.3
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Change in
Investment Options |
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9 |
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4.4
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Transfer
Between Funds |
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9 |
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4.5
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Investment Options |
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10 |
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4.6
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Voting
Rights; Offer to Purchase Stock |
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10 |
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4.7
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Limitations |
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11 |
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ARTICLE V Valuation of a
Member’s Account
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12 |
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ARTICLE VI
Distributions
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13 |
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6.1
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Distributions on Termination of Employment Other than by Reason
of a Member’s Death |
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13 |
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6.2
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Distribution Upon a Member’s Death |
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13 |
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6.3
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Lost
Members or Beneficiaries |
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14 |
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6.4
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Required
Distributions |
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14 |
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6.5
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Direct
Rollover Distributions |
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15 |
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6.6
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Distributions on Sales of Businesses |
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15 |
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6.7
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Payments
to Minors and Incompetents |
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16 |
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ARTICLE VII Management of
Funds
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17 |
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7.1
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General
Responsibilities |
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17 |
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7.2
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Funding
Agreements |
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17 |
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7.3
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Investment Managers |
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17 |
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ARTICLE VIII Administration of the
Plan
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18 |
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8.1
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The
Committee |
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18 |
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8.2
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Duties of
the Committee |
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18 |
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8.3
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Meetings |
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18 |
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8.4
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Action by
Majority |
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18 |
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8.5
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Compensation |
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18 |
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8.6
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Establishment of Rules |
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8.7
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Prudent
Conduct |
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18 |
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8.8
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Indemnification |
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19 |
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ARTICLE IX Amendment and
Termination
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20 |
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ARTICLE X General
Provisions
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21 |
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10.1
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Expenses |
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10.2
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Source of
Payment |
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21 |
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10.3
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No Right
of Employment |
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21 |
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10.4
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Non-Alienation of Benefits |
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21 |
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10.5
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Qualified
Domestic Relations Orders |
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21 |
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10.6
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Invalidity of Provisions |
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22 |
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10.7
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Failure
to Initially Qualify Plan |
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10.8
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Adoption
of Plan by Subsidiary, Affiliated or Associated Company |
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10.9
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Mergers
and Transfers |
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22 |
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10.10
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Compliance with Securities Laws |
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10.11
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Governing
Law |
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10.12
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Trust-to-Trust Transfers |
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10.13
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Construction |
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10.14
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Nondiscrimination Testing |
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10.15
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Military
Service |
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ARTICLE XI Contribution
Limitations
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24 |
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11.1
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Annual
Addition Limitation |
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11.2
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Top-Heavy
Provisions |
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ARTICLE I
Definitions
As used herein, unless
otherwise defined or required by the context, the following words
and phrases shall have the meanings indicated. Some of the words
and phrases used in the Plan are not defined in this
Article I, but, for convenience, are defined as they are
introduced into the text.
1.1 Account” means the
Member’s account into which shall be credited the amounts in
the Investment Funds attributable to contributions made by the
Company on the Member’s behalf pursuant to
Section 3.1.
1.2 “Affiliated
Company” means any company which is related to the Company as
a member of a controlled group of corporations in accordance with
Section 414(b) of the Code, or as a trade or business under
common control in accordance with Section 414(c) of the Code,
or any other entity to the extent it is required to be treated as
an Affiliated Company in accordance with Section 414(o) of the
Code and any regulations thereunder, or any organization which is
part of an affiliated service group in accordance with
Section 414(m) of the Code. For the purposes under the Plan of
determining whether or not a person is an employee and the period
of employment of such person, each such company shall be considered
an Affiliated Company only for such period or periods during which
such other company is a member of the controlled group or under
common control.
1.3 “Beneficiary”
means such beneficiary as may be designated pursuant to
Section 2.3.
1.4 “Board of
Directors” means the Board of Directors of the
Company.
1.5 “Code” means
the Internal Revenue Code of 1986, as amended.
1.6 “Committee”
means the committee appointed in accordance with
Section 8.1.
1.7 “Company”
means Armstrong World Industries, Inc., a Pennsylvania corporation,
or any successor by merger, purchase or otherwise with respect to
its employees.
1.8 “Company
Contributions” mean those contributions made by the Company
under Section 3.1.
1.9 “Continuous
Employment” means, subject to all of the provisions set forth
herein, service with the Company or one or more Affiliated
Companies, including successive service with two or more Affiliated
Companies.
(a) Notwithstanding the
foregoing, periods while on an uncompensated leave of absence or an
uncompensated layoff shall be disregarded in the determination of
an Employee’s Continuous Employment.
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(b) Continuous Employment
shall be deemed terminated on the earliest of the following
events:
(1) Death, retirement,
resignation, or quit by the Employee;
(2) Discharge;
(3) Failure to return to work
on:
(i) Expiration of approved
leave of absence;
(ii) Recall after
layoff;
(iii) Expiration of
reemployment rights protected by law; or
(4) Elapse of 12 months
following layoff without recall.
1.10 “Effective
Date” means January 1, 1998, or such later date as of
which the Plan is made applicable in accordance with
Section 10.8.
1.11 “Employee”
means a person in the employ of the Company or an Affiliated
Company. The term “Employee” shall exclude any person
who is (i) a leased employee, (ii) a member of a
bargaining unit, and (iii) a foreign national or citizen of a
territorial possession of the United States of America whose
employment relationship or contract of employment originates at,
and whose services are performed solely for and at, a branch
facility of the Company outside the United States. The term
“leased employee” shall mean any person (other than an
Employee of the Company or an Affiliated Company) who pursuant to
an agreement between the Company or Affiliated Company and any
other person (“leasing organization”) has performed
services for the Company or an Affiliated Company on a
substantially full-time basis for a period of at least one year,
and such services are performed under the primary direction or
control by the Company or an Affiliated Company. A leased employee
shall not be considered an Employee of the Company or an Affiliated
Company if: (i) such individual is covered by a money purchase
pension plan providing (1) an employer contribution of 10% of
compensation as defined under Section 11.1, (2) immediate
participation, and (3) full and immediate vesting; and
(ii) leased employees do not constitute more than 20% of the
Company’s nonhighly compensated workforce.
1.12 “ERISA”
means the Employee Retirement Income Security Act of 1974, as
amended.
1.13 “Fund” or
“Investment Fund” means any of the separate funds in
which contributions to the Plan are invested in accordance with
Article IV.
1.14 “Insurance
Company” means the insurance company which issues a contact,
and any successor insurance company thereto.
1.15 “Insurance
Contract” means a contract issued by an Insurance Company to
fund benefits under the Plan, and any successor contract
thereto.
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1.16 “Investing
Institution” means a Trustee, or Insurance Company, mutual
fund or investment manager which is designated by the Committee, by
Trust Agreement or Insurance Contract, to manage the
Funds.
1.17 “Member”
means any Employee who becomes a Member of this Plan as provided in
Section 2.1.
1.18 “Named
Fiduciary” means the Board of Directors, the Committee, and
the Trustee.
1.19 “Participating
Company” means the Company or any other Affiliated Company
approved by the Committee.
1.20 “Plan” means
the Bonus Replacement Retirement Plan of Armstrong World
Industries, Inc. , as described herein.
1.21 “Plan Year”
means the 12-month period beginning on January 1 and ending on
the following December 31.
1.22 “Trust
Agreement” means the agreement entered into between the
Company and the Trustee to fund benefits under the Plan.
1.23 “Trust Fund”
means the cash and other properties arising from contributions made
by the Company in accordance with the provisions of this Plan and
held and administered by the Trustee pursuant to the Trust
Agreement.
1.24 “Trustee”
means any bank or trust company designated by the Board of
Directors under a trust agreement to receive Company Contributions
made in accordance with Section 3.1.
1.25 “Valuation
Date” means the date or dates, as applicable, on which the
Trust Fund is valued in accordance with Article V.
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ARTICLE II
Eligibility,
Membership, and Beneficiary Designation
2.1 Eligibility . Each
Employee of a Participating Company who, on the first day of the
Plan Year, is (1) at a grade level of 18 or more on the
Participating Company’s organizational management system, and
(2) eligible to participate in the Company’s Management
Achievement Plan shall become a Member on the later of (A) the
Effective Date of the Plan, or (B) the date the Employee first
satisfies the criteria for Plan eligibility. An Employee who has
transferred from the employment of a foreign subsidiary of the
Company to the employment of a Participating Company and who is
accruing benefits under a retirement program maintained by such
foreign subsidiary shall not become a Member of the Plan until the
earliest of the date on which:
(a) He becomes a United
States citizen;
(b) He is granted permanent
resident alien status under the laws of the United States;
or
(c) He ceases to accrue
benefits under such foreign subsidiary retirement
program.
2.2 Suspension of
Membership due to Transfer to Non-Covered Employment . If, in
any Plan Year, a Member is not in a category of employment
described in Section 2.1 above as of the last day of such Plan
Year, but continues in the employment of the Company or an
Affiliated Company, he shall be a suspended Member for the entire
such Plan Year subject to the following conditions:
(a) During the period of his
suspension, the Member shall not be entitled to share in any
allocations of Company Contributions. If during the period of his
suspension his employment terminates or he retires or dies, there
shall be a distribution of his Account in accordance with
Article VI.
(b) If and when a suspended
Member again becomes employed by the Company at a grade level of 18
or above, he shall again be an active Member as of that date and
may share in any allocations of Company Contributions (in
accordance with the terms of the Plan).
2.3 Beneficiary
Designation . Subject to the rules set forth below with respect
to married Members, each Member has the right to name a Beneficiary
to receive any death benefits payable hereunder. Each Member also
has the right, from time to time, to change any designation of
Beneficiary. A designation or change of Beneficiary must be in
writing on forms supplied by the Committee and any change of
Beneficiary will not become effective until such change of
Beneficiary is filed with the Committee or its designee whether or
not the Member is alive at the time of such filing; provided,
however, that any such change will not be effective with respect to
any payments made by the Trustee in accordance with the
Member’s last designation and prior to the time such change
was received by the Committee or its designee. In the case of any
Member who is married on the date of his death, the Member’s
spouse as of his
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date of death shall be his Beneficiary
unless such spouse shall have consented to a different Beneficiary
on prescribed forms and before either a notary public or an
individual designated by the Committee. Such spousal consent must
acknowledge the effect of the Beneficiary designation. In the
absence of an effective Beneficiary designation or if a named
Beneficiary shall have died and no contingent Beneficiary shall
have been properly designated, the first of the following classes
of successive preference beneficiaries shall be the
Beneficiary:
(a) the Member’s
surviving spouse;
(b) the Member’s
surviving children;
(c) the estate of the
Member.
Any individual who is designated as an
alternate payee under a “qualified domestic relations
order” (as defined in Code Section 414(p)) relating to a
Member’s Account under this Plan shall be treated as a
Beneficiary hereunder, to the extent provided by such order. The
Committee may require and rely upon such proof of death and such
evidence of the right of any Beneficiary or other person to receive
the undistributed value of a deceased Member’s Account as the
Committee may deem proper, and its determination of death and of
the right of such Beneficiary or other person to receive payment
shall be conclusive.
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ARTICLE III
Company
Contributions
3.1 Company
Contributions . The Company may contribute to the Plan the
amounts necessary to make the following allocations.
(a) Allocations - Company
Contributions for a Plan Year shall be allocated to the Accounts of
Members who are employed in a category described in
Section 2.1 on the last day of such Plan Year in accordance
with the following:
(1) If a Member’s
employment grade is at least grade 18 but not more than
grade 19 under the Company’s organizational management
system as of January 1 of the Plan Year, the Company
Contributions allocated on behalf of such Member for the Plan Year
shall be equal to the lesser of (i) 50% of the actual
“gross bonus” (as such term is defined under the
Company’s Management Achievement Plan) awarded to the
Employee under the Company’s Management Achievement Plan with
respect to services performed by the Member for the Company for the
calendar year coinciding with such Plan Year, or
(ii) $7,500.
(2) If a Member’s
employment grade is at least grade 20 but not more than
grade 21 under the Company’s organizational management
system as of January 1 of the Plan Year, the Company
Contributions allocated on behalf of such Member for the Plan Year
shall be equal to the lesser of (i) 50% of the actual
“gross bonus” awarded to the Employee under the
Company’s Management Achievement Plan with respect to
services performed by the Member for the Company for the calendar
year coinciding with such Plan Year, or
(ii) $15,000.
(3) If a Member’s
employment grade is at least grade 22 under the
Company’s organizational management system as of
January 1 of the Plan Year, the Company Contributions
allocated on behalf of such Member for the Plan Year shall be equal
to the lesser of (i) 50% of the actual “gross
bonus” awarded to the Employee under the Company’s
Management Achievement Plan with respect to services performed by
the Member for the Company for the calendar year coinciding with
such Plan Year, or (ii) $20,000.
3.2 Return of
Contributions . All Company Contributions are conditioned on
their being allowed as a deduction for federal income tax purposes.
Notwithstanding any provision of the Plan to the contrary, Company
Contributions made to the Plan may be returned to the Company
if:
(a) the contribution is made
by reason of mistake of fact; or
(b) the contribution is
conditioned on its deductibility under Code Section 404 and
such deductibility is denied;
provided such return of contribution is
made within one year of the mistaken payment of the contribution or
the disallowance of the deduction, as the case may be. A
contribution shall be considered to be made by reason of a mistake
of fact if, for example, it is based on incorrect information as to
eligibility or compensation of an Employee, a mathematical error or
an erroneous belief that such contribution is consistent with the
limitations of Section 11.1. So
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much of the contribution as is
attributable to the mistake of fact shall be repaid by the Trustee
upon demand by the Company upon presentation of evidence of the
mistake of fact and calculation as to the impact of the
mistake.
3.3 Vesting of
Member’s Account and Forfeitures . A Member shall have a
vested and nonforfeitable interest in his Account immediately upon
becoming a Member.
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ARTICLE IV
Investment of
Contributions
4.1 Investment Funds .
Contributions to the Plan shall be invested by the Investing
Institution in one or more of the following Investment Funds in
accordance with Section 4.2:
(a) “Equity Investment
Fund” is one or more diversified equity funds, as may be
available from time to time, invested in equity securities or
securities convertible into equity securities or in a commingled
equity trust for the collective investment of funds of employee
benefit plans qualified under Section 401(a) of the Code (or
corresponding provisions of any subsequent Federal revenue law at
the time in effect), excluding, however, any stocks or other
securities of the Investing Institution. This exclusion shall not
apply to any investment in a commingled trust or Insurance Company
account not proscribed by applicable law. Pending the selection and
purchase of suitable investments for this Fund, any part of this
Fund may be invested in short-term and medium-term fixed income
securities, such as commercial paper, notes of finance companies,
and obligations of the U.S. Government and any agency or
instrumentality thereof.
(b) “Stable Value
Fund” is one or more stable value funds, as may be available
from time to time, invested in investment contracts issued by
insurance companies and other financial institutions, fixed income
securities such as U.S. Treasury and agency bonds, corporate bonds,
mortgage-backed securities, asset-backed securities and bond funds,
futures contracts, option contracts and swap agreements, and money
market funds and other short term investments to provide daily
liquidity, and may also include investment in any commingled trust
fund qualified under Section 401(a) of the Code (or
corresponding provisions of any subsequent Federal revenue law at
the time in effect), which is invested primarily in similar types
of securities.
(c) “Company Stock
Fund” is a fund designed solely to invest in the common stock
of Armstrong Holdings, Inc. or to hold the common stock of
Armstrong Holdings, Inc. contributed to the Plan by the Company. Up
to 100% of the assets of the Plan may be invested in the Company
Stock Fund. As of May 1, 2000, each share of Company Stock
held by the Plan will be converted into a share of common stock of
Armstrong Holdings, Inc. Thereafter, any reference to
“Company Stock” or “Company common stock”
in the Plan shall refer to the common stock of Armstrong Holdings,
Inc. Notwithstanding the foregoing, beginning January 1, 2001,
the Company Stock Fund shall not be available as an Investment Fund
with respect to investment elections under Section 4.1,
changes in investment options under Section 4.2, and transfers
between Investment Funds under Section 4.4.
(d) “Balanced
Fund” is one or more balanced funds, as may be available from
time to time, that invest in a mixture of bonds, equities, and
short-term instruments, as determined by the Fund
manager.
Any such common, collective or
commingled trust funds referred to in connection with the Funds
referred to in Subsections 4.1(a), 4.1(b), or 4.1(d) shall
satisfy such requirements of
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ERISA governing the establishment of
such funds for the investment of assets of employee benefit plans
qualified under Section 401(a) and exempt under
Section 501(a) of the Code whereupon the instrument or
instruments establishing such common, collective or commingled
trust funds, as amended from time to time, shall constitute a part
of this Plan and the Trust Agreement with respect to any assets of
the Investment Fund(s) which are at the time invested in such
funds. Any portion of an Investment Fund may, pending permanent
investment or distribution, be invested in short term securities
issued or guaranteed by the United States of America or any agency
or instrumentality thereof or any other investments of a short term
nature, including corporate obligations or participation’s
therein or through the medium of any common, collective or
commingled trust fund maintained by the Trustee which is invested
principally in property of the kind specified in this Section. A
portion of an Investment Fund may be maintained in cash.
4.2 Investment
Elections . Company Contributions made on a Member’s
behalf under Section 3.1 will be invested in multiples of 1%,
in any one or more of the Investment Funds (other than the Company
Stock Fund, with respect to Company Contributions made on and after
January 1, 2001), as elected by the Member in accordance with
such uniform rules as the Committee may adopt from time to time. If
Company Contributions are made prior to the time that a Member has
made an election under this Section 4.2, such Company
Contributions shall be invested in the Balanced Fund until such
investment election is received. Any Company Contributions that are
designated by the Member to be invested in the Company Stock Fund
shall be invested in a Balanced Fund until the Member properly
designates the investment of such Company Contributions in and
among the other Investment Funds available under
Section 4.1.
4.3 Change in Investment
Options . A Member may change his election of the Investment
Funds (other than the Company Stock Fund, with respect to Company
Contributions made on and after January 1, 2001) at any time
with respect to any subsequent Company Contributions to be
allocated on his behalf, by giving notice (including telephonic
notice) to the Committee in such manner and within the time limit
prescribed by the Committee.
4.4 Transfer Between
Funds .
(a) An active or inactive
Member may elect to transfer all or any portion of the value of his
Account in one of the Investment Funds to any other Investment Fund
(other than the Company Stock Fund, with respect to transfer
requests made on and after January 1, 2001) at the following
times (and under such uniform rules as the Committee may adopt from
time to time):
(1) Any election to transfer
between and among the Equity Investment Fund, the Stable Value Fund
and the Balanced Fund (and any related funds maintained in the
Equity Investment Fund, the Stable Value Fund and the Balanced
Fund) may be made at any time, to be effective as soon as
practicable thereafter; and
(2) Any election to transfer
from the Company Stock Fund may be made at any time. Effective
January 1, 2007, transactions will be executed daily, and are
subject to normal settlement timeframes and practices.
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(b) Except as otherwise
provided, transfers pursuant to this Section 4.4 may be made
by telephoning notice to the Investing Institution, and shall be
effective as soon as practicable following the Investing
Institution’s receipt of the notice.
4.5 Investment Options
. Each Member is solely responsible for the selection of his
investment option. The Investing Institutions, the Committee, the
Company or any of the officers or supervisors of the Company are
not empowered to advise a Member as to the manner in which his
Account shall be invested. The fact that a security is available to
Members for investment under the Plan shall not be construed as a
recommendation for the purchase of that security, nor shall the
designation of any option impose any liability on the Company, its
directors, officers or employees, the Investing Institutions, the
Committee or any Member of the Plan.
4.6 Voting Rights; Offer
to Purchase Stock .
(a) Voting - All
Company stock (including fractional shares), the value of which is
allocated to Members’ Accounts, shall be voted by the Trustee
of
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