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Exhibit 4.3
CYTEC EMPLOYEES’
SAVINGS PLAN
Effective April 1,
2007
TABLE OF
CONTENTS
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| ARTICLE 1 |
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2 |
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Definitions
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2 |
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| ARTICLE 2 |
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11 |
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Participation
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11 |
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2.01 General Eligibility
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11 |
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2.02 Break-In Service - Participation
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12 |
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2.03 Participation upon Re-Employment
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12 |
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2.04 Transferred Employees
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12 |
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| ARTICLE 3 |
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14 |
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Employee Before-Tax Contributions
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14 |
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3.01 Employee Before-Tax Contributions
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14 |
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3.02 Method of Request; Termination; Adjustments
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15 |
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3.03 Employee Before-Tax Contribution Limitations
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15 |
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3.04 Employee Catch-up Contributions
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17 |
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| ARTICLE 4 |
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18 |
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Employee After-Tax Contributions
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18 |
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4.01 Payroll Deductions
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18 |
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4.02 Adjustments
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18 |
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4.03 Termination of Employee After-Tax Contributions
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18 |
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4.04 Resumption of Employee After-Tax Contributions
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19 |
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4.05 Non-Discrimination Test
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19 |
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4.06 Distribution of Excess Aggregate Contributions
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20 |
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| ARTICLE 5 |
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22 |
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Company Matching Contributions
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22 |
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5.01 Company Matching Contributions
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22 |
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5.02 Forfeiture of Matching Contributions
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22 |
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| ARTICLE 6 |
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23 |
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401(k)/(m) Safe Harbors
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23 |
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6.01 Rules of Application
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23 |
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6.02 Definitions
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23 |
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6.03 Notice Requirements
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24 |
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6.04 Special Withdrawal Rule
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24 |
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| ARTICLE 7 |
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25 |
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Profit Sharing Contributions
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25 |
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7.01 Profit Sharing Contributions
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25 |
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7.02 Limitation on Allocation to Participant’s
Account
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25 |
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| ARTICLE 8 |
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28 |
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Vesting
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28 |
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8.01 Employee After-Tax Contributions, Employee Before-Tax
Contributions and Catch-up Contributions
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28 |
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8.02 Matching and Profit Sharing Contributions
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28 |
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8.03 Forfeitures
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28 |
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8.04 Election of Vesting Schedule
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29 |
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| ARTICLE 9 |
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30 |
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Time and Method of Payment of Benefits
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30 |
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9.01 Time of Payment of Account Balance
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30 |
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9.02 Deferred Distribution
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30 |
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9.03 Payment Options
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31 |
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9.04 Distribution Election
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31 |
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9.05 Immediate Distribution
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31 |
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9.06 Automatic Rollovers
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32 |
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9.07 Distribution to Alternate Payee
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32 |
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9.08 Minimum Distribution Requirements
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32 |
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| ARTICLE 10 |
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38 |
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Withdrawals
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38 |
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10.01 Hardship Withdrawal
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38 |
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10.02 Age 59 1
/ 2 Withdrawals
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39 |
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10.03 Withdrawals of Matching Contributions
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40 |
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10.04 Withdrawals of Employee After-Tax & Rollover
Contributions
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40 |
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10.05 Effective Date
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40 |
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10.06 Withdrawals in Company Stock
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40 |
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| ARTICLE 11 |
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41 |
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Loans
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41 |
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11.01 Loan Application
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41 |
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11.02 Loan Terms and Conditions
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42 |
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11.03 Funding of Loans
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42 |
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11.04 Loan Repayment and Prepayment
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43 |
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11.05 Loan Default
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43 |
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| ARTICLE 12 |
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45 |
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Investments
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45 |
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12.01 Investment Funds
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45 |
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12.02 Investment Options of Participants
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45 |
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12.03 Election of Investment Options
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45 |
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12.04 Transfer of Accumulated Values
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46 |
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12.05 ESOP Diversification of Investments
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46 |
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12.06 Investment of Matching Contributions
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48 |
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12.07 Cash Dividend on Company Stock Fund
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48 |
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12.08 Investment of Income
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48 |
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12.09 Temporary Investments
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48 |
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| ARTICLE 13 |
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49 |
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Participants’ Accounts In Funds
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49 |
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13.01 Separate Accounts
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49 |
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13.02 Payments to Trustee
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49 |
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13.03 Units
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50 |
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| ARTICLE 14 |
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51 |
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Participant’s Quarterly Statement
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51 |
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| ARTICLE 15 |
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52 |
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Notices, Etc.
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52 |
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15.01 Notices to Employees, Etc.
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52 |
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15.02 Notices to Administrator
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52 |
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| ARTICLE 16 |
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53 |
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Appointment of Trustee and CIPF
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53 |
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16.01 Appointment of Trustee
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53 |
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16.02 Appointment of CIPF
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53 |
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| ARTICLE 17 |
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54 |
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Voting of Company Stock
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54 |
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17.01 Notice
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54 |
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17.02 Vote
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54 |
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17.03 Tender Offer
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54 |
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| ARTICLE 18 |
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55 |
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Administration
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55 |
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18.01 Appointment of Administrator
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55 |
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18.02 Appointment of Fiduciary
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55 |
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18.03 Books and Records
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55 |
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18.04 Powers of the Administrator
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56 |
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18.05 Communications
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57 |
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18.06 Claims Review Procedure
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57 |
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18.07 Costs and Expenses
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58 |
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| ARTICLE 19 |
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59 |
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Termination, Amendment, Modification and Suspension
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59 |
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19.01 Company Discretion
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59 |
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19.02 Effect
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59 |
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19.03 Immediate Vesting; Subsequent Distribution
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59 |
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19.04 No Diversion
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59 |
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19.05 Compliance with Law
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60 |
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19.06 Merger of Transfer
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60 |
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19.07 Exclusive Benefit
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60 |
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| ARTICLE 20 |
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62 |
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Participants’ Rights Not Transferable or
Assignable
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62 |
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20.01 Anti-Alienation Rule
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62 |
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20.02 QDRO Exception
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62 |
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| ARTICLE 21 |
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64 |
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Designation of Beneficiaries
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64 |
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| ARTICLE 22 |
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66 |
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Sale of Distributed Securities
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66 |
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| ARTICLE 23 |
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67 |
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Transfers from Other Qualified Plans and Qualified
Trusts
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67 |
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23.01 Transfers
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67 |
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23.02 Transfers of Employees
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67 |
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23.03 No Benefit Reduction
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68 |
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ARTICLE 24
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69 |
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Rollover
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69 |
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24.01 Rollover
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69 |
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24.02 Participation
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70 |
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24.03 Direct Rollovers
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70 |
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| ARTICLE 25 |
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72 |
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Top Heavy Rules
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72 |
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25.01 Minimum Employer Contribution
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72 |
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25.02 Additional Contribution
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72 |
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25.03 Determination of Top Heavy Status
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73 |
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25.04 Definitions
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74 |
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| ARTICLE 26 |
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76 |
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Miscellaneous Provisions
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76 |
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26.01 Burden of Investment Risk
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76 |
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26.02 No Contract of Employment
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76 |
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26.03 Missing Participants
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76 |
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26.04 Governing Law
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76 |
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| ARTICLE 27 |
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77 |
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Employee Stock Ownership Plan
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77 |
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27.01 General
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77 |
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27.02 Acquisition and Disposition of Company Stock
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77 |
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| EXHIBIT A |
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79 |
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| EXHIBIT B |
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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
11
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
12
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.
13
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.
14
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.
15
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.
16
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.
17
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
18
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
19
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
20
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.
21
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.
22
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.
23
(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.
24
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
25
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.
26
(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.
27
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.
28
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.
29
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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