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CYTEC EMPLOYEES? SAVINGS PLAN

Employee Benefits Plan Agreement

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Cytec Industries Inc

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Title: CYTEC EMPLOYEES? SAVINGS PLAN
Governing Law: New Jersey     Date: 6/13/2008
Industry: Chemical Manufacturing     Sector: Basic Materials

CYTEC EMPLOYEES? SAVINGS PLAN, Parties: cytec industries inc
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Exhibit 4.3

CYTEC EMPLOYEES’ SAVINGS PLAN

Effective April 1, 2007

 


TABLE OF CONTENTS

 

ARTICLE 1    2
 

Definitions

   2
ARTICLE 2    11
 

Participation

   11
 

2.01 General Eligibility

   11
 

2.02 Break-In Service - Participation

   12
 

2.03 Participation upon Re-Employment

   12
 

2.04 Transferred Employees

   12
ARTICLE 3    14
 

Employee Before-Tax Contributions

   14
 

3.01 Employee Before-Tax Contributions

   14
 

3.02 Method of Request; Termination; Adjustments

   15
 

3.03 Employee Before-Tax Contribution Limitations

   15
 

3.04 Employee Catch-up Contributions

   17
ARTICLE 4    18
 

Employee After-Tax Contributions

   18
 

4.01 Payroll Deductions

   18
 

4.02 Adjustments

   18
 

4.03 Termination of Employee After-Tax Contributions

   18
 

4.04 Resumption of Employee After-Tax Contributions

   19
 

4.05 Non-Discrimination Test

   19
 

4.06 Distribution of Excess Aggregate Contributions

   20
ARTICLE 5    22
 

Company Matching Contributions

   22
 

5.01 Company Matching Contributions

   22
 

5.02 Forfeiture of Matching Contributions

   22
ARTICLE 6    23
 

401(k)/(m) Safe Harbors

   23
 

6.01 Rules of Application

   23
 

6.02 Definitions

   23
 

6.03 Notice Requirements

   24
 

6.04 Special Withdrawal Rule

   24

 


ARTICLE 7    25
  

Profit Sharing Contributions

   25
  

7.01 Profit Sharing Contributions

   25
  

7.02 Limitation on Allocation to Participant’s Account

   25
ARTICLE 8    28
  

Vesting

   28
  

8.01 Employee After-Tax Contributions, Employee Before-Tax Contributions and Catch-up Contributions

   28
  

8.02 Matching and Profit Sharing Contributions

   28
  

8.03 Forfeitures

   28
  

8.04 Election of Vesting Schedule

   29
ARTICLE 9    30
  

Time and Method of Payment of Benefits

   30
  

9.01 Time of Payment of Account Balance

   30
  

9.02 Deferred Distribution

   30
  

9.03 Payment Options

   31
  

9.04 Distribution Election

   31
  

9.05 Immediate Distribution

   31
  

9.06 Automatic Rollovers

   32
  

9.07 Distribution to Alternate Payee

   32
  

9.08 Minimum Distribution Requirements

   32
ARTICLE 10    38
  

Withdrawals

   38
  

10.01 Hardship Withdrawal

   38
  

10.02 Age 59  1 / 2 Withdrawals

   39
  

10.03 Withdrawals of Matching Contributions

   40
  

10.04 Withdrawals of Employee After-Tax & Rollover Contributions

   40
  

10.05 Effective Date

   40
  

10.06 Withdrawals in Company Stock

   40
ARTICLE 11    41
  

Loans

   41
  

11.01 Loan Application

   41
  

11.02 Loan Terms and Conditions

   42
  

11.03 Funding of Loans

   42
  

11.04 Loan Repayment and Prepayment

   43
  

11.05 Loan Default

   43

 


ARTICLE 12    45
  

Investments

   45
  

12.01 Investment Funds

   45
  

12.02 Investment Options of Participants

   45
  

12.03 Election of Investment Options

   45
  

12.04 Transfer of Accumulated Values

   46
  

12.05 ESOP Diversification of Investments

   46
  

12.06 Investment of Matching Contributions

   48
  

12.07 Cash Dividend on Company Stock Fund

   48
  

12.08 Investment of Income

   48
  

12.09 Temporary Investments

   48
ARTICLE 13    49
  

Participants’ Accounts In Funds

   49
  

13.01 Separate Accounts

   49
  

13.02 Payments to Trustee

   49
  

13.03 Units

   50
ARTICLE 14    51
  

Participant’s Quarterly Statement

   51
ARTICLE 15    52
  

Notices, Etc.

   52
  

15.01 Notices to Employees, Etc.

   52
  

15.02 Notices to Administrator

   52
ARTICLE 16    53
  

Appointment of Trustee and CIPF

   53
  

16.01 Appointment of Trustee

   53
  

16.02 Appointment of CIPF

   53
ARTICLE 17    54
  

Voting of Company Stock

   54
  

17.01 Notice

   54
  

17.02 Vote

   54
  

17.03 Tender Offer

   54

 


ARTICLE 18    55
  

Administration

   55
  

18.01 Appointment of Administrator

   55
  

18.02 Appointment of Fiduciary

   55
  

18.03 Books and Records

   55
  

18.04 Powers of the Administrator

   56
  

18.05 Communications

   57
  

18.06 Claims Review Procedure

   57
  

18.07 Costs and Expenses

   58
ARTICLE 19    59
  

Termination, Amendment, Modification and Suspension

   59
  

19.01 Company Discretion

   59
  

19.02 Effect

   59
  

19.03 Immediate Vesting; Subsequent Distribution

   59
  

19.04 No Diversion

   59
  

19.05 Compliance with Law

   60
  

19.06 Merger of Transfer

   60
  

19.07 Exclusive Benefit

   60
ARTICLE 20    62
  

Participants’ Rights Not Transferable or Assignable

   62
  

20.01 Anti-Alienation Rule

   62
  

20.02 QDRO Exception

   62
ARTICLE 21    64
  

Designation of Beneficiaries

   64
ARTICLE 22    66
  

Sale of Distributed Securities

   66
ARTICLE 23    67
  

Transfers from Other Qualified Plans and Qualified Trusts

   67
  

23.01 Transfers

   67
  

23.02 Transfers of Employees

   67
  

23.03 No Benefit Reduction

   68

ARTICLE 24

   69
  

Rollover

   69
  

24.01 Rollover

   69
  

24.02 Participation

   70
  

24.03 Direct Rollovers

   70

 


ARTICLE 25    72
  

Top Heavy Rules

   72
  

25.01 Minimum Employer Contribution

   72
  

25.02 Additional Contribution

   72
  

25.03 Determination of Top Heavy Status

   73
  

25.04 Definitions

   74
ARTICLE 26    76
  

Miscellaneous Provisions

   76
  

26.01 Burden of Investment Risk

   76
  

26.02 No Contract of Employment

   76
  

26.03 Missing Participants

   76
  

26.04 Governing Law

   76
ARTICLE 27    77
  

Employee Stock Ownership Plan

   77
  

27.01 General

   77
  

27.02 Acquisition and Disposition of Company Stock

   77
EXHIBIT A    79
EXHIBIT B    81

 


CYTEC EMPLOYEES’ SAVINGS PLAN

PREAMBLE

The Cytec Employees’ Savings Plan (the “Plan”) is hereby established effective April 1, 2007 for the benefit of eligible employees of Cytec Industries Inc., and certain of its affiliates who adopt the Plan. The Plan is intended to constitute a Qualified Automatic Contribution Arrangement under Section 401(k)(13) of the Code.

 


ARTICLE 1

DEFINITIONS

As used herein:

1.01 “Account Balance” shall mean the Participant’s total interest under the Plan attributable to (i) Employee After-Tax Contributions, (ii) Employee Before-Tax Contributions, (iii) Catch-up Contributions, (iv) Profit-Sharing Contributions, (v) Rollover Contributions, or (vi) Matching Contributions, individually or collectively as context demands, as may be further modified herein.

1.02 “Act” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time.

1.03 “Actual Contribution Percentage” shall mean the average (expressed as a percentage) of the Contribution Percentages of all the Eligible Participants.

1.04 “Adjustment Factor” shall mean the cost of living adjustment factor prescribed by the Secretary of the Treasury under Section 415(d) of the Code for years beginning after December 31, 1987, as applied to such items and in such manner as the Secretary shall provide.

1.05 “Administrator” shall have the meaning specified in Article 18.01.

1.06 “Annual Addition” shall mean for any Plan Year the sum of (a) Employer contributions, (b) Participant contributions, (c) forfeitures, and (d) amounts allocated to an individual medical account, as defined in Section 415(l)(2) of the Code which is part of a pension or

 

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annuity plan maintained by a Participating Company, and amounts derived from contributions paid or accrued which are attributable to post-retirement medical benefits allocated to the separate account of a key employee, as defined in Section 419A(d)(3) of the Code, under a welfare benefit fund, as defined in Section 419(e) of the Code, maintained by a Participating Company.

1.07 “Annuity Starting Date” shall mean the first day of the first period for which the Plan pays an amount to a Participant in any form.

1.08 “Catch-up Contributions” shall mean Employee Before-Tax Contributions made by a Participant in accordance with Article 3.04.

1.09 “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.

1.10 “Committee on Investment of Pension Funds” or “CIPF” shall mean the Committee established by the Company pursuant to Article 16 to select and monitor the investment funds available for investment under the Plan.

1.11 “Company” shall mean Cytec Industries Inc., a Delaware corporation, and any successor thereto.

1.12 “Company Contribution” shall mean a Profit Sharing Contribution to the Plan made by or on behalf of any Employer pursuant to Article 7.

1.13 “Company Stock” shall mean shares of voting common stock or noncallable preferred stock issued by the Company which constitute “employer securities” or “qualifying employer securities” under Sections 409(l) and 4975(e) of the Code.

 

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1.14 “Computation Period” shall mean a twelve consecutive month period commencing on the date on which such person first becomes an Employee and on each succeeding anniversary thereof.

1.15 “Contribution Percentage” shall mean the ratio (expressed as a percentage) of the Employee After-Tax Contributions made by the Eligible Participants for the Plan Year to the Eligible Participants’ Earnings for the Plan Year.

1.16 “Earnings” shall mean wages paid by the Company or an affiliate within the meaning of Code Section 3401(a) (for the purposes of income tax withholding at the source) within the meaning of IRS Section 3401(a) (for the purposes of income tax withholding at the source) but determined without regard to any rules that limit the remuneration included in wages based on the nature or location of the employment or the services performed, prior to any reduction as contemplated by Article 3 of the Plan or Sections 125, 127, 129, 132(f)(4) or successor provisions of the Code paid to an Employee by an Employer, but excluding severance pay, short term disability payments, long term disability payments, amounts realized from the exercise of a non-qualified stock-option, or when restricted stock (or property) held by an employee either becomes freely transferable or is no longer subject to a substantial risk of forfeiture; amounts realized from the sale, exchange or other disposition of stock acquired under a qualified stock-option; amounts which receive special tax benefits, such as premiums for group-term life insurance (but only to the extent that the premiums are not includible in the gross income of the employee); education assistance; employer provided dependent care assistance; certain employee awards (meal money, safety shoes, gift certificates, protective glasses, special allowances, etc.); all moving expenses; and contributions made by the employer to a plan of deferred compensation to the extent that the contributions are not

 

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includible in the gross income of the Employee for the taxable year in which contributed; provided, however, that in no event will the annual Earnings of an employee exceed the limitation provided for in Section 401(a)(17) of the Code, as adjusted by the Adjustment Factor. Earnings shall also include Earnings as defined above, paid to an Employee by a non U.S. employer required to be aggregated with the Company pursuant to Section 414(b), (c), (m) or (o) of the Code; provided, that such Employee was a Member in the Plan prior to his transfer to the non U.S. member of the controlled group, and the non-U.S. member of the controlled group is not accruing pension benefits on behalf of the Employee for such period of service.

The annual Earnings of each Participant taken into account in determining allocations for any Plan Year shall not exceed $225,000, as adjusted for cost-of-living increases in accordance with Section 401(a)(17)(B) of the Code. Annual Earnings means Earnings during the Plan Year or such other consecutive 12-month period over which Earnings is otherwise determined under the Plan (the determination period). The cost-of-living adjustment in effect for a calendar year applies to Annual Earnings for the determination period that begins with or within such calendar year.

1.17 “Effective Date” shall mean April 1, 2007.

1.18 “Eligible Employee” shall mean any Employee of the Employer who is eligible to participate in accordance with Article 2.01.

1.19 “Employee” shall mean a person who is currently employed by the Employer or any other employer required to be aggregated with the Company pursuant to Section 414(b), (c), (m) or (o) of the Code. Employee shall include Leased Employees.

 

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1.20 “Employee After-Tax Contributions” shall mean any contribution to the Plan made by a Participant pursuant to Article 4.01.

1.21 “Employee Before-Tax Contributions” shall mean any amount constituting a reduction of the Earnings of a Participant pursuant to Article 3.01 which causes the Employer to contribute such amount to the Plan on behalf of such Participant.

1.22 “Employer” shall mean the Company and any Participating Company as well as any predecessor or successor to the Employer.

1.23 “Enrollment Date” shall mean the first payroll date following thirty days of employment.

1.24 “ESOP Account” shall mean the Participant’s Matching Contribution account, as well as any portion of the Participant’s ESOP Account under the Cytec Employees’ Savings and Profit Sharing Plan that may be transferred to this Plan.

1.25 “Excess Aggregate Contributions” shall mean, with respect to any Plan Year, the excess of the aggregate Contribution Percentage amounts taken into account in computing the numerator of the Contribution Percentage actually made on behalf of Highly Compensated Employees for such Plan Year, over the maximum Contribution Percentage amounts permitted by the average contribution percentage test in Section 4.05.

1.26 “Fund” shall mean any of the Funds specified in Exhibit A attached hereto.

1.27 “Highly Compensated Employee” shall mean an Employee who:

 

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(a) at any time during the Plan Year or the preceding year was a 5% owner of the Employer (applying the constructive ownership rules of Section 318 of the Code); or

(b) for the preceding year had Earnings in excess of $100,000 (as adjusted by the Commissioner of Internal Revenue for the relevant year). For purposes of this subsection, the Employer does not apply the top paid election.

The term “Highly Compensated Employee” also includes any former Employee who separated from service (or has a deemed separation from service, as determined under Treasury regulations) prior to the Plan Year, performs no service for the Employer during the Plan Year, and was a Highly Compensated Employee either for the separation year or any Plan Year ending on or after his 55th birthday.

1.28 “Hours of Service” shall mean each hour for which an Employee is paid or entitled to payment for the performance of duties for the Company or an affilate.

1.29 “Leased Employee” shall mean an individual (who otherwise is not an Employee of the Employer) who, pursuant to a leasing agreement between the Employer and any other person, has performed services for the Employer (or for the Employer and any persons related to the Employer within the meaning of Section 414(n)(6) of the Code) on a substantially full time basis for at least one year, and such services are performed under the primary direction or control of the Employer.

1.30 “Matching Contribution” shall mean the contribution made by the Employer with respect to the Participant’s Employee Before-Tax Contributions, Catch-up Contributions and/or Employee After-Tax Contributions pursuant to Article 5.

1.31 “Maternity and Paternity Leave” shall mean an absence from work for any period by reason of the Employee’s pregnancy, birth of the Employee’s child, placement of the child with the

 

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Employee in connection with the adoption of such child, or any absence for the purpose of caring for such child for a period immediately following the birth or placement. For this purpose, the Severance from Service Date of an Employee who is absent from service beyond the first anniversary of the first day of the Maternity and Paternity Leave, is the second anniversary of the first day of such absence.

1.32 “Nonhighly Compensated Employee” shall mean an Employee who is not a Highly Compensated Employee.

1.33 “Participant” shall mean an Eligible Employee of the Employer who is otherwise authorized under the terms of the Plan to have Employee Before-Tax Contributions, Employee After-Tax Contributions, Matching Contributions or Profit Sharing Contributions allocated to his/her account for the Plan Year.

1.34 “Participating Company” shall mean those entities designated on Exhibit B and any other entity required to be aggregated with the Company pursuant to Sections 414(b), (c), (m) or (o) of the Code, which, with the written consent of the Plan Administrator adopts this Plan. Unless otherwise specifically provided by the Executive Committee, a Participating Company shall be considered such (and employees thereof Employees) only during such time as the criteria of this paragraph are met.

1.35 “Payroll Deduction Authorization” shall mean any one of the written or electronic forms approved by the Administrator from time to time which authorizes the Employer to make a Employee Before-Tax Contribution, Employee After-Tax Contribution or Catch Up Contribution on behalf of the Participant.

 

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1.36 “Period of Service” shall mean the period of time commencing on the Employee’s Employment Commencement Date and ending on the Severance from Service Date. Period of Service shall include credit for periods of qualified military service in accordance with Section 414(u) of the Code. Period of Service shall also include all service rendered by an individual while employed by any entity in which the Company has an interest of 50% or more which does not constitute a Participating Company, provided the individual transfers to the employ of the Company with less than a 30-day break in employment.

1.37 “Period of Severance” shall mean the period of time commencing on the Severance from Service Date and ending on the date the Employee again performs an Hour of Service. A “one year Period of Severance” shall mean a twelve (12) month period within which the Employee does not perform an Hour of Service. If the Employee completes an Hour of Service prior to incurring a one year Period of Severance, the Employee’s Severance from Service Date shall be disregarded and such period shall be included in his Period of Service.

1.38 “Plan” shall mean the Cytec Employees’ Savings Plan, as amended from time to time.

1.39 “Plan Year” shall mean April 1, 2007 through December 31, 2007, and beginning with and including January 1, 2008, each calendar year thereafter for the existence of the Plan.

1.40 “Profit Sharing Contribution” shall mean a contribution to the Plan made pursuant to Article 7.

1.41 “Rollover Contribution” shall mean any contribution to the Plan made pursuant to Article 24.

 

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1.42 “Severance from Service Date” shall mean the earlier of the date on which the Employee quits, retires, is discharged or dies, or the first anniversary of the date of absence for any other reason.

1.43 “Totally and Permanently Disabled” when used with respect to a Participant, shall mean a person who is determined by the Company, on the basis of a written statement of a qualified physician selected by the Company, to be unable, indefinitely, as a result of any medical, physical or mental condition (whether occupational or non-occupational) to engage in any occupation of employment for substantial remuneration or profit other than for purposes of rehabilitation.

1.44 “Transferred Avecia Employees” shall mean any Employee who commenced employment with an Employer on August 1, 2003 as a result of the Asset Purchase Agreement dated June 20, 2003 between the Company and Avecia Investments Limited.

1.45 “Trustee” shall mean the trustee or trustees appointed by the Company pursuant to Article 16.

1.46 “Trust Fund” shall mean the fund created pursuant to the Trust Agreement between the Company and the Trustee, Vanguard Fiduciary Trust Company, or any successor Trustee.

1.47 “Unit” shall have the meaning specified in Article 13.

1.48 “Valuation Date” shall mean each day on which the New York Stock Exchange is open for the trading of securities.

1.49 Wherever used herein, the singular shall include the plural and the masculine shall include the feminine and the neuter, unless the context clearly indicates otherwise.

 

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ARTICLE 2

PARTICIPATION

2.01 General Eligibility . Each Eligible Employee of the Employer hired on or after April 1, 2007 shall become a Participant of the Plan for all purposes as of the Enrollment Date following the Participant’s completion of one Hour of Service. Employees who are Leased Employees, who are members of a collective bargaining unit or who are eligible to participate in another defined contribution plan maintained by or contributed to by the Employer shall not be eligible to participate.

If a Participant does not terminate employment but becomes a member of a collective bargaining unit, during the period that such Participant is a member of a collective bargaining unit the Administrator shall limit contributions to the Participant’s account to the extent of his Earnings for services rendered while he is not a member of a collective bargaining unit. However, during the period the Participant is a member of a collective bargaining unit, the Participant’s accounts shall continue to share fully in Trust Fund earnings and losses.

If an Employee hired after April 1, 2007 who is not a Participant ceases to be a member of a collective bargaining unit, he shall participate in the Plan immediately if he would have been a Participant had he not been a member of a collective bargaining unit during his period of service with the Employer. Furthermore, an Employee shall receive vesting credit under Article 8 for each included Year of Service during his period of service with the Employer without regard to whether the Employee is a member of a collective bargaining unit.

For purposes of this Article 2.01, an Employee is a member of a collective bargaining unit if he is included in a unit of Employees covered by an agreement which the Secretary of Labor finds

 

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to be a collective bargaining agreement between employee representatives and one or more employers if there is evidence that retirement benefits were the subject of good faith bargaining between such employee representatives and such employer or employers. The term “employee representatives” does not include an organization of which more than one-half of the members are owners, officers or executives of the Employer.

2.02 Break-In Service - Participation . For purposes of participation in the Plan, the Plan shall not apply any Break in Service rule.

2.03 Participation upon Re-Employment . A Participant whose employment terminates shall re-enter the Plan as a Participant on the date of his re-employment for purposes of receiving the non-discretionary Profit Sharing Contribution under Article 7, and shall resume Employee Before-Tax Contributions pursuant to Article 3 (automatic reductions at the percentages set forth in Section 3.01 unless the Participant otherwise elects by completing a Payroll Deduction Authorization). In order to resume Employee After-Tax Contributions pursuant to Article 4, the reemployed Participant will have to execute a new Payroll Deduction Authorization at least ten days before the Enrollment Date which follows the date of the Participant’s reemployment. Any other Employee whose employment terminates and who is subsequently re-employed shall become a Participant in accordance with the provisions of Section 2.01.

2.04 Transferred Employees . The eligibility requirements of Article 2.01 shall not apply to an Employee who becomes a Participant in accordance with, and as described in, Article 23 hereof, to the extent specified in such Article 23, or to the extent that the Executive Committee of the Company (or any committee or person to whom the Executive Committee may delegate the authority) waives any prior employment requirement set forth in this Article or in Article 23 with

 

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respect to any group of persons who become Employees as the result of the acquisition of any business or assets by an Employer, upon such terms and conditions as the Executive Committee (or such committee or person) may specify.

 

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ARTICLE 3

EMPLOYEE BEFORE-TAX CONTRIBUTIONS

3.01 Employee Before-Tax Contributions . A Participant’s Earnings shall be automatically reduced effective as of the Participant’s Enrollment Date as follows:

(a) at least three percent (3%) during the period ending on the last day of the first Plan Year which begins after the date on which the first automatic Employee Before-Tax Contribution is made with respect to such Participant,

(b) at least four percent (4%) during the first Plan Year following the Plan Year described in subclause (a),

(c) at least five percent (5%) during the second Plan Year following the Plan Year described in subclause (a), and

(d) at least six percent (6%) during any subsequent Plan Year.

Increases to the minimum percentages set forth in subclauses (b)-(d) shall occur on April 1st of each Plan Year, commencing on April 1st of the first Plan Year which begins after the date on which the first automatic Before-Tax Contribution occurs.

Automatic enrollment pursuant to this Article 3.01 shall be explained to each eligible Employee in a written notice provided as of the Employee’s date of hire. The Notice shall explain the Employee’s right under this Article 3.01 to (i) elect not to have elective contributions made on the Employee’s behalf (or to elect to have such contributions made at a different percentage), (ii) explain how contributions will be invested in the absence of any investment election by the Employee, and (iii) permit the Employee to make either election described in (i) and (ii).

An Eligible Employee may elect not to have Employee Before-Tax Contribution’s withheld from his or her Earnings, or may elect to have Earnings reduced by 1% to 50% in whole percentages, by completing a Payroll Deduction Authorization form in the manner specified by the Administrator. A Participant’s Payroll Deduction Authorization shall continue in effect until changed by the Participant pursuant to Article 3.02.

 

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3.02 Method of Request; Termination; Adjustments . The percentage of Earnings authorized as a payroll deduction for Employee Before-Tax Contributions pursuant to Article 3.01 may be increased or decreased by a Participant as of the first day of any month (but not more than once each calendar month) by completing a Payroll Deduction Authorization in the manner specified by the Administrator. A change in Earnings of a Participant shall, without any notice being given to such Participant, adjust the dollar amount of the Employee Before-Tax Contributions with respect to such Participant to that amount represented by the percentage previously in effect of his new Earnings. A termination of a Participant’s Payroll Deduction Authorization pursuant to this Article 3.02, or a resumption following such termination, shall not be deemed an adjustment for purposes of the limitation of the number of increases or decreases permitted in any calendar month.

3.03 Employee Before-Tax Contribution Limitations . No Participant shall be permitted to have Employee Before-Tax Contributions made under this Plan, or any other qualified plan maintained by the Employer during any taxable year, in excess of the dollar limitation contained in Section 402(g) of the Code in effect for such taxable year, except to the extent permitted under Article 3.04 of the Plan and Section 414(v) of the Code. A Participant may elect to make the maximum Employee Before-Tax Contribution permitted under the preceding sentence after which all contributions made by the Participant during that Plan Year shall be Employee After-Tax Contributions pursuant to Article 4. For purposes of the limitation of this Article 3.03, the amount contributed to a Participant’s Employee Before-Tax Contribution account shall not include any Employee Before-Tax Contributions properly returned to the Participant as excess Annual Additions under Article 7.02.

 

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If a Participant would exceed the limitation of this Article 3.03 when the amount contributed by the Participant as Employee Before-Tax Contributions is aggregated with the amounts deferred by the Participant under other plans or arrangements described in Sections 401(k), 408(k), 403(b), 457 or 501(c)(18) of the Code, the Participant may request that the Administrator distribute the excess deferrals to him. Such excess deferrals and income or loss allocable thereto, may be distributed no later than April 15 of the year following the year in which any such excess deferrals are contributed, to Participants who claim such allocable deferral contributions for the preceding calendar year. The Participant’s claim shall be in writing; shall be submitted to the Administrator no later than April 15; shall specify the Participant’s deferral contribution amount for the preceding calendar year; and shall be accompanied by the Participant’s written statement that if such amounts are not distributed, such deferral contributions, when added to amounts deferred under other plans or arrangements described in Sections 401(k), 408(k), 408(p), 403(b), 457 or 501(c)(18) of the Code, exceed the limit imposed on the Participant in accordance with the applicable provisions of the Code for the year in which the deferral occurred. To the extent the excess deferral arises under this Plan when combined with other plans of the Employer, the individual will be deemed to have notified the Administrator of the excess deferral and requested distribution of the excess deferral.

The income or loss allocable to the excess deferrals shall be the amount determined by multiplying the income or loss allocable to the Participant’s accounts containing the excess deferrals for the calendar year by a fraction, the numerator of which is the excess deferrals on behalf of the Participant for the calendar year and the denominator of which is the Participant’s Account Balance in his accounts containing the excess deferrals as of the last Valuation Date of the Plan Year in which the excess deferrals are made without regard to any gain or loss allocable to such total amount for the calendar year.

 

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3.04 Catch-up Contributions . All Participants who are eligible to make elective deferrals under this Plan 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 Section 414(v) of the Code. Such catch-up contributions shall not be taken into account for purposes of the provisions of the Plan implementing the required limitations of Sections 402(g) and 415 of the Code. The Plan shall not be treated as failing to satisfy the provisions of the Plan implementing the requirements of Section 401(k)(3), 401(k)(11), 401(k)(12), 410(b), or 416 of the Code, as applicable, by reason of the making of such catch-up contributions.

 

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ARTICLE 4

EMPLOYEE AFTER-TAX CONTRIBUTIONS

4.01 Payroll Deductions . Each Participant may make Employee After-Tax Contributions to the Plan by completing a Payroll Deduction Authorization in the manner specified by the Administrator authorizing a payroll deduction of 1% to 50% of his Earnings, in whole percentages, which maximum percentage shall be reduced by the percentage of Earnings such Participant is contributing as Employee Before-Tax Contributions pursuant to Article 3. All Employee After-Tax Contributions made after December 31, 1986 and the income allocable thereto shall be treated as a separate contract for purposes of the distribution rules under Section 72 of the Code.

4.02 Adjustments . The percentage of Earnings authorized as a payroll deduction for Employee After-Tax Contributions by a Participant may be increased or decreased by him as of the first day of any month (but not more than once each calendar month) by completing a Payroll Deduction Authorization in the manner specified by the Administrator. A termination of a Participant’s Payroll Deduction Authorization pursuant to Article 4.03, or a resumption of Employee After-Tax Contributions following such termination, shall not be deemed an adjustment for purposes of the limitation of the number thereon specified in any calendar month. A change in Earnings of a Participant shall, without any notice being given by such Participant, adjust the dollar amount of such Participant’s Employee After-Tax Contributions to that amount represented by the percentage previously in effect of his new Earnings. Such adjustment shall not be deemed an increase or decrease for the purpose of this Section.

4.03 Termination of Employee After-Tax Contributions . Payroll deductions for Employee After-Tax Contributions authorized by a Participant may be terminated by him, effective

 

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as of the first day of any month by completing a revised Payroll Deduction Authorization in the manner specified by the Administrator. If a Participant shall become ineligible to make contributions to the Plan, his Payroll Deduction Authorization shall terminate forthwith.

4.04 Resumption of Employee After-Tax Contributions . If the Payroll Deduction Authorization of a Participant with respect to Employee After-Tax Contributions shall terminate, such person thereafter may resume contributions to the Plan as of the first day of any month on which such person is eligible to authorize payroll deductions for the Plan under the eligibility provisions of the Plan by completing a new Payroll Deduction Authorization form in the manner specified by the Administrator.

4.05 Non-Discrimination Test . From time to time during the course of the applicable Plan Year, the Administrator shall insure that either (i) the Average Contribution Percentage for Eligible Employees who are Highly Compensated Employees for the Plan Year shall not exceed the Average Contribution Percentage for Eligible Employees who are Nonhighly Compensated Employees for the Plan Year multiplied by 1.25 or (ii) the Average Contribution Percentage for Eligible Employees who are Highly Compensated Employees for the Plan Year shall not exceed the Average Contribution Percentage for Eligible Employees who are Nonhighly Compensated Employees for the Plan Year multiplied by 2, provided that the Average Contribution Percentage for Eligible Employees who are Highly Compensated Employees does not exceed the Average Contribution Percentage for Eligible Employees who are Nonhighly Compensated Employees by more than two (2) percentage points.

For purposes of this Article 4, the Contribution Percentage for any Eligible Employee who makes no Employee After-Tax Contribution shall be 0%. The Contribution Percentage for an

 

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Eligible Employee who is a Highly Compensated Employee for the Plan Year and who is eligible to make Employee After-Tax Contributions allocated to his account under two or more plans described in Section 401(a) of the Code or arrangements described in Section 401(k) of the Code that are maintained by a Participating Company shall be determined as if all such contributions were made under a single plan.

In the event that this Plan satisfies the requirements of Section 401(m), 401(a)(4) or 410(b) of the Code only if aggregated with one or more other plans, or if one or more other plans satisfy the requirements of Section 401(m), 401(a)(4) or 410(b) of the Code only if aggregated with this Plan, then this Article shall be applied by determining the Contribution Percentages of Eligible Employees as if all such plans were a single plan. Plans may be aggregated in order to satisfy Section 401(m) of the Code only if they have the same Plan Year and use the same Average Contribution Percentage testing method.

The Administrator may decrease the Matching Contribution allocable to any Participant if such decrease is necessary to ensure that the limitations of Article 4.05 are met for such Plan Year.

Excess Aggregate Contributions shall be reduced by determining the amount of Excess Aggregate Contributions by each Highly Compensated Employee (in order of Contribution Percentages beginning with the highest), and distributing any Excess Aggregate Contributions which are determined to exist to the affected Highly Compensated Employees in order of highest dollar amount of Employee After-Tax Contributions.

4.06 Distribution of Excess Aggregate Contributions . Excess Aggregate Contributions and income allocable thereto shall be distributed to an affected Participant no later than March 15 of

 

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the Plan Year following the Plan Year in which any such Excess Aggregate Contribution were made, but in no event shall the Excess Aggregate Contributions be distributed later than the last day of the Plan Year following the Plan Year in which the contributions giving rise to the Excess Aggregate Contributions were allocated. Excess Aggregate Contributions shall be treated as Annual Additions under the Plan.

The determination of Excess Aggregate Contributions shall be made pursuant to this Article 4.06. The Excess Aggregate Contributions to be distributed to a Participant shall be adjusted by the income or loss allocable to such Excess Aggregate Contribution. The income or loss allocable to the Excess Aggregate Contributions shall be the amount determined by multiplying the income or loss allocable to the Participant’s accounts containing the excess amounts for the Plan Year by a fraction, the numerator of which is the Excess Aggregate Contributions on behalf of the Participant for the Plan Year and the denominator of which is the Participant’s Account Balance in the accounts containing the excess amounts as of the last Valuation Date of the Plan Year in which the Excess Aggregate Contribution is made without regard to any gain or loss allocable to such total amount for the Plan Year.

 

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ARTICLE 5

COMPANY MATCHING CONTRIBUTIONS

5.01 Company Matching Contributions . The Employer shall make a Matching Contribution on behalf of a Participant who makes an Employee Before-Tax Contribution, Catch-up Contribution or After-Tax Contribution during the payroll period equal to one-hundred percent (100%) of the Participant’s contribution during the payroll period, but not to exceed six percent (6%) of the Participant’s Earnings for the payroll period.

5.02 Forfeiture of Matching Contributions . In order to satisfy Article 4.05, Excess Aggregate Contributions, plus any income and minus any loss allocable thereto, shall be forfeited, if forfeitable, or if not forfeitable, shall be distributed no later than 12 months after a Plan Year to Participants to whose accounts such Excess Aggregate Contributions were allocated for such Plan Year. Excess Aggregate Contributions are allocated to the Highly Compensated Employees with the largest Contribution Percentage amounts taken into account in calculating the ACP test for the year in which the excess arose, beginning with the Highly Compensated Employee with the largest amount of such Contribution Percentage amounts and continuing in descending order until all the Excess Aggregate Contributions have been allocated. The income allocable to a Matching Contribution shall be determined in accordance with the procedure for determining income allocable to excess deferrals set forth in Article 3.03. Forfeited Matching Contributions and the income allocable thereto shall be applied to reduce the Company’s Matching Contribution obligation for the Plan Year. Excess Aggregate Contributions shall be treated as Annual Additions under the Plan even if distributed.

 

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ARTICLE 6

401(k)/(m) SAFE HARBOR

6.01 Rules of Application . Effective January 1, 2008, the Plan shall utilize the Qualified Automatic Contribution Arrangement Safe Harbor of Section 401(k)(13) of the Code, as herein defined. Accordingly, the Actual Deferral Percentage (“ADP”) test described in Section 401(k)(3) of the Code with respect to Employee Before-Tax Contributions shall be deemed automatically satisfied and the Average Contribution Percentage (“ACP”) test described in Section 401(m)(2) of the Code with respect to Matching Contributions shall be deemed automatically satisfied. During the initial Plan Year, the ADP and ACP tests shall be automatically satisfied because the Plan will only cover Eligible Employees first hired on or after April 1, 2007; therefore, all the Participants will be non Highly Compensated Employees. To the extent that any other provision of this Plan is inconsistent with the provisions of this Article, the provisions of this Article govern.

6.02 Definitions . The following definitions shall apply for purposes of this Article only:

(a) “Automatic Deferral” means an arrangement wherein each Employee eligible to participate in the Plan is treated as having elected to have the Employer make Employee Before-Tax Contributions in an amount equal to a Qualified Percentage of Earnings unless such Employee makes an affirmative election to not have such Employee Before-Tax Contributions made or to make Employee Before-Tax Contributions at a level specified in such affirmative election. Article 3.01 is intended to provide Automatic Deferrals.

(b) “Qualified Automatic Contribution Arrangement Safe Harbor” is the method described in this Article 6.03 for satisfying the ADP test with respect to Employee Before-Tax Contributions and for satisfying the ACP test with respect to Matching Contributions.

 

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(c) “Qualified Percentage of Earnings” are those percentages set forth in Article 3.01 (a)-(d).

6.03 Notice Requirements . The Employer intends that this Plan satisfy the Qualified Automatic Contribution Arrangement Safe Harbor by, inter alia , providing each Eligible Employee, within a reasonable period before each Plan Year, a comprehensive notice of the Employee’s rights and obligations under the Plan, written in a manner calculated to be understood by the average Eligible Employee. Such notice shall:

(a) explain the Employee’s right under the arrangement to elect not to have Employee Before-Tax Contributions made on the Employee’s behalf (or to elect to have such Employee Before-Tax Contributions made at a different percentage),

(b) explain how contributions will be invested in the absence of any investment election by the Employee, and

(c) permit the Employee a reasonable time after the receipt of the notice and before the first Employee Before-Tax Contributions is made to make either election described in (a) and (b).

A “reasonable period” for the purposes of this Article 6.03 shall mean at least 30 days, but not more than 90 days, before the beginning of the Plan Year.

6.04 Special Withdrawal Rule . A Participant may elect to withdraw any Automatic Deferrals plus the interest thereon made during the first (90) ninety days following the Enrollment Date provided the Participant gives written notice to the Administrator of the Participant’s intent to withdraw all Automatic Deferrals plus interest thereon in the manner specified by the Administrator prior to the expiration of the (90) ninety day period.

 

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ARTICLE 7

PROFIT SHARING CONTRIBUTIONS

7.01 Profit Sharing Contributions . The Employer shall make a non-discretionary Profit Sharing Contribution for each Participant who satisfied the requirements of Article 2.01 without regard to whether the Employee makes any Employee Before-Tax Contributions or Employee After-Tax Contributions. Such non-discretionary Profit Sharing Contribution shall be equal to three percent (3%) of each Participant’s Earnings per payroll.

7.02 Limitation on Allocation to Participant’s Account . If a Participant does not and has not ever received an allocation of Annual Additions as defined in Article 1.05, the amount of Annual Additions which the Administrator may allocate under this Plan on a Participant’s behalf for a Limitation Year shall not exceed the Maximum Permissible Amount. Prior to the determination of the Participant’s actual Earnings for a Limitation Year, the Administrator may determine the Maximum Permissible Amount on the basis of the Participant’s estimated annual Earnings for such Limitation Year. The Administrator shall make this determination on a uniform and reasonable basis for all Participants similarly situated. As soon as is administratively feasible after the end of the Limitation Year, the Administrator shall determine the Maximum Permissible Amount for the Limitation Year on the basis of the Participant’s Earnings for the Limitation Year.

If, as a result of the Administrator’s estimation of the Participant’s Earnings, as a result of a forfeiture allocation, or as a result of a reasonable error in determining the amount of Employee Before-Tax Contributions that may be made with respect to any Participant under the limits of Section 415 of the Code, an Excess Amount exists, any Employee Before-Tax Contributions or

 

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Employee After-Tax Contributions will be returned to the Participant. To the extent an Excess Amount still exists, the Administrator shall reduce any Employer contributions and forfeitures to the Participant’s accounts at the end of the Limitation Year by the Excess Amount, and any remaining Excess Amount shall be carried over to the next Limitation Year. If the Participant is not covered by the Plan as of the end of the Limitation Year, then the Excess Amount will be allocated to the accounts of all other Participants in the Plan for the Limitation Year before any other amounts are allocated for such Limitation Year.

For purposes of this limitation, all defined benefit plans of the Employer, whether or not terminated, are to be treated as one defined benefit plan and all defined contribution plans of the Employer, whether or not terminated, are to be treated as one defined contribution plan.

The following definitions apply to this Article only:

(a) “Maximum Permissible Amount.” Except to the extent permitted under Article 3.04 of the Plan, the Maximum Permissible Amount that may be contributed or allocated to a Participant’s account under the Plan for any Limitation Year shall not exceed the lesser of:

(i) $45,000, as adjusted for increases in the cost-of-living under Section 415(d) of the Code, or

(ii) 100 percent of the Participant’s Earnings, within the meaning of Section 415(c)(3) of the Code, for the Limitation Year.

The Earnings limit referred to in (b) shall not apply to any contribution for medical benefits after separation from service (within the meaning of Section 401(h) or Section 419A(f)(2) of the Code) which is otherwise treated as an “Annual Addition.”

(b) “Employer.” The Employer which adopts this Plan as well as any entity which must be aggregated with the Employer pursuant to Section 414(b), (c), (m) or (o) of the Code. For purposes of this subsection (c) only, Section 414(b) and (c) shall be defined as modified by Section 415(h) of the Code.

 

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(c) “Excess Amount.” The excess of the Participant’s Annual Additions credited to the Participant’s account for the Limitation Year over the Maximum Permissible Amount. Any Excess Amount shall be held in a suspense account which does not participate in the allocation of the Trust’s investment gains and losses. Excess Amounts may not be distributed to Participants or former Participants. Any Excess Amount which is allocated shall be deemed to be an Annual Addition for the Limitation Year in which it is allocated.

(d) “Limitation Year.” The calendar year.

 

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ARTICLE 8

VESTING

8.01 Employee After-Tax Contributions, Employee Before-Tax Contributions and Catch-up Contributions . That portion of the Participant’s account attributable to Employee After-Tax Contributions, Employee Before-Tax Contributions, Catch-up Contributions and income thereon shall be fully vested at all times and shall not at any time be subject to forfeiture or divestiture.

8.02 Matching and Profit Sharing Contributions . That portion of a Participant’s account attributable to Matching and Profit Sharing Contributions and the income thereon shall be fully vested and not be subject to forfeiture or divestiture if a Participant attains age 65, dies or is determined to be Totally and Permanently Disabled. That portion of a Participant’s account attributable to Matching and Profit Sharing Contributions and the income thereon shall also be fully vested and not be subject to forfeiture or divestiture if a Participant has completed two (2) one year Periods of Service.

8.03 Forfeitures . Subject to Article 8.02, a Participant’s non-vested interest in his Matching and Profit Sharing Contributions shall be forfeited upon his termination of employment if (a) he receives a cash-out distribution as described in Regulation 1.411(a)(7)(d) of the Code, or, (b) he incurs five consecutive one-year Periods of Severance (a “Forfeiture Period of Severance”). Such forfeitures shall be applied to reduce the Company’s Matching Contribution. If the value of the Participant’s vested Matching and Profit Sharing Contributions is zero, the Participant shall be deemed to have received a distribution of such vested account.

 

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8.04 Election of Vesting Schedule . In the event of any amendments to the vesting schedule specified in Article 8.02, each Participant having not less than three Years of Service credited under Article 8.02 may elect to have their vested interest computed under the Plan without regard to such amendment. The election period shall begin no later than the date the amendment changing the vesting schedule is adopted and end no earlier than the latest of the following three dates:

(a) the date which is 60 days after the date the amendment is adopted;

(b) the date which is 60 days after the date the amendment becomes effective; or

(c) the date which is 60 days after the day the Participant is issued written notice of the amendment by the Administrator.

 

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ARTICLE 9

TIME AND METHOD OF PAYMENT OF BENEFITS

9.01 Time of Payment of Account Balance . Unless the Participant elects otherwise in writing, the Administrator shall direct the Trustee to commence distribution of a Participant’s account determined as of the Valuation Date coincident with or preceding the event causing distribution no later than 60 days after the close of the Plan Year in which the later of the following events occurs:

(a) The date the Participant reaches age 60;

(b) The tenth anniver


 
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